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Topic: "Discrimination - Sexual orientation" | Main

Washington's sexual orientation discrimination amendment is not retroactive
September 13, 2012 by Ross Runkel at LawMemo

The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.

The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.

Loeffelholz v. Univ of Washington (Washington 09/13/2012)

Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.

The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.

Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.

The court's findings:

(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.

(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.

(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.

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DOMA down, but why?
May 31, 2012 by Ross Runkel at LawMemo

The 1st Circuit today held that the Defense of Marriage Act's denial of federal benefits to married same-sex couples is unconstitutional. Massachusetts v. US Department of Health and Human Services (1st Cir 05/31/2012).

The federal Defense of Marriage Act (DOMA) Section 3 prevents same-sex married couples from filing joint tax returns, prevent a surviving spouse from collecting Social Security survivor benefits, and prevents federal employees from sharing medical benefits with same-sex spouses.

The trial court held that DOMA Section 3 is unconstitutional; the 1st Circuit affirmed.

The court's decision surveys equal protection and federalism issues and concludes that "governing precedents under both heads combine - not to create some new category of 'heightened scrutiny,' ..., but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage."

Thus the court gave less deference to, and "closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern."

The court concluded that denial of federal benefits to same-sex married couples "has not been adequately supported by any permissible federal interest."

The court stayed its mandate, thus extending the trial court's stay, in anticipation of the losing parties seeking certiorari in the US Supreme Court.

My view:

This is a decision, purportedly based on the US Constitution, that essentially avoids making an explicit connection to the text of the Constitution.

The idea is that states regulate marriage, the federal government may have something to say in this regard, but the reasons behind the federal government's actions didn't have enough oomph. No, there's no 10th amendment violation, and no violation of the Spending Clause. And no, there's no "strict scrutiny" going on. And no "new category of 'heightened scrutiny.'" But wait, let's give the legislation "closer scrutiny."

I'm no fan of DOMA, but it's not really clear to me what this court is doing.

[By the way, similar DOMA issues are pending in the 9th Circuit.]

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Court partially reinstates stay of Don't Ask Don't Tell injunction
July 16, 2011 by Ross Runkel at LawMemo

On Friday, the 9th Circuit partially reinstated its previous stay of the District Court's order pending appeal. Log Cabin Republicans v. USA (9th Cir 07/15/2011). [Confusing? Well, of course it is.]

The District Court had enjoined the government from enforcing the military's "don't ask don't tell" policy regarding gay service members.

On November 1, 2010 the 9th Circuit entered a stay pending appeal; and on July 6 the court lifted that stay.

In the latest action on July 15 the court reinstated the stay temporarily, except that the "district court’s judgment shall continue in effect insofar as it enjoins [the government] from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy." This was in response to the government's emergency motion for reconsideration; briefing on this motion will be completed on July 22.

Briefing on the underlying dispute has been completed, and the 9th Circuit will hear oral arguments on September 1.

Of course, this lawsuit ultimately will be moot because the government is in the process of dismantling the Don’t Ask, Don’t Tell policy.

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Don't Ask Don't Tell injunction is reinstated
July 07, 2011 by Ross Runkel at LawMemo

The 9th Circuit has lifted its previous stay of the District Court's order pending appeal.

The District Court had enjoined the government from enforcing the military's "don't ask don't tell" policy regarding gay service members.

The 9th Circuit reasoned that recent legislation and recent changes in the government's litigation position have resulted in a change in the balance of hardships, so that the government "can no longer satisfy the demanding standard for issuance of a stay."

Oral arguments in this pending appeal will be scheduled for the week of August 29.

The case is Log Cabin Republicans v. USA.

The order, issued 07/06/2011.

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Don't Ask Don't Tell enjoined nationwide
October 12, 2010 by Ross Runkel at LawMemo

Today the US District Court for the Central District of California issued an immediate and nationwide permanent injunction against enforcement of the military’s Don’t Ask, Don’t Tell policy.

Log Cabin Republicans v. United States

[Findings, Conclusions]

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Don't Ask Don't Tell Act is unconstitutional and will be enjoined.
September 11, 2010 by Ross Runkel at LawMemo

The case: Log Cabin Republicans v. United States (CD Calif 09/09/2010)

Log Cabin Republicans sued seeking a declaratory judgment and an injunction against enforcement of the federal military's Don't Ask Don't Tell Act, 10 USC § 654, and related regulations.

The US District Court for the Central District of California held that the Act violates the 1st and 5th amendments, and announced that a permanent injunction will issue.

The court held that

(1) the Act violates the 5th amendment because it does not significantly further the government's interests in military readiness or unit cohesion, and the Act is not necessary to advance the government's interests; and

(2) the Act violates the 1st amendment because, as a content-based regulation of speech, the Act "encompasses a vast range of speech, far greater than necessary to protect the Government's substantial interests."

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$50,000,000 suit claims sex discrimination by law firm
December 28, 2009 by Ross Runkel at LawMemo

Last week Julie Kamps, a former associate at the Fried Frank law firm, filed a suit claiming the firm denied her a promotion to partner because she is a lesbian and did nothing to stop higher-ups from harassing her.

She seeks $50 million in damages plus reinstatement as a partner.


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Gender identity discrimination banned in New York state agencies
December 18, 2009 by Ross Runkel at LawMemo

The Governor of New York has issued an executive order prohibiting New York state agencies from discriminating against any individual on the basis of gender identity and expression in any matter pertaining to employment by the state.

[CCH article]

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Same-sex harassment: Absurd decision by the 5th Circuit
October 22, 2009 by Ross Runkel at LawMemo

Connie Love claimed her employer violated Title VII because a female co-worker subjected her to sexual harassment through inappropriate comments, gestures, and physical contacts. The 5th Circuit, in a "non-precedential" 2-1 decision, upheld summary judgment for the employer, saying that

  • Love failed to show that the alleged harasser made "explicit or implicit proposals of sexual activity."
  • Love failed to provide "credible evidence that the harasser was homosexual."

Love v. Motiva Enterprises (5th Cir non-precedential 10/16/2009) (2-1).

The majority has totally gone off the deep end, and has engaged in simple judicial fabrication - grafting onto Title VII requirements that are not there.

Title VII prohibits "discrimination" "because of ... sex." Harassment is just one way that discrimination can occur - hiring, firing, promoting, harassing.

Nothing in the statute even suggests that a harasser has to be proposing sexual activity in order to violate Title VII. The statute is not about sexual activity or sexuality.

Nothing in the statute suggests that if one women is harassing another woman, the harasser has to be a homosexual in order to violate Title VII.

Let's see what the judges said.

No proposals for sexual activity

  • The majority said Love failed to prove that her co-worker made either explicit or implicit proposals for sexual activity. The court reasoned that the co-worker's "offensive and inappropriate" comments and physical touchings "do not support an inference of sexual attraction and implicit proposals for sex in light of [the co-worker's] consistent insults toward Love and demonstrated negative feelings about Love and her appearance."
  • The dissent said, "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... made abundantly clear that, for a plaintiff to prove that she was sexually harassed, she need not show that the harasser was 'motivated by sexual desire.'"

Alleged harasser was not a homosexual

  • The majority said Love failed to prove that her co-worker was a homosexual. The court reasoned that Love failed to provide credible evidence that the co-worker was a homosexual, saying that her evidence was not "clear and credible proof that [the co-worker] is homosexual sufficient to defeat summary judgment."
  • The dissent said "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... does not require that a plaintiff show that a same-sex harasser was either amorously motivated or homosexually oriented, as the majority opinion seems to suggest: rather, she need merely show that she was harassed 'because of sex.'"

Hats off to the dissent.

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Two 9th Circuit Judges Order Benefits for Same-Sex Spouses of Court Employees
February 05, 2009 by Ross Runkel at LawMemo

Leonard Link reports:

In two opinions posted to the website of the U.S. Court of Appeals for the 9th Circuit on February 4, judges of the court ruling on internal grievances filed by employees of the judicial branch within the 9th Circuit ordered the court administrators to process requests that same-sex spouses of the employees be included in the federal benefits plan governing their employment. The decisions are not official 9th Circuit court opinions, but provide unusual insight into what at least these two circuit court judges think about the federal Defense of Marriage Act (DOMA) and its relationship to the constitutional rights of LGBT public employees.

The circuit has its own non-discrimination policy, which covers sex and sexual orientation, among other things, and applies to the terms and conditions of employment of its staff, and an internal dispute resolution policy that culminates in an appeal to a single member of the court. The same system, in parallel, applies to employees of the federal public defenders offices in the 9th Circuit. In these two cases, In the Matter of Karen Golinski and In the Matter of Brad Levenson, employees covered by this system married same-sex partners in California during the window of opportunity prior to the passage of Proposition 8 (which amended the California Constitution to provide that only different-sex marriages were valid or recognized in California), and each sought to have their partner included under their employee benefits plans as spouses. The benefits administrators in both cases took the position that because of DOMA, which includes a provision forbidding the recognition of same-sex partners for purposes of federal law, these spouses could not be considered "spouses" as the term is used in the statute authorizing employee benefits for federal court personnel.

For the rest of the story, Two 9th Circuit Judges Order Benefits for Same-Sex Spouses of Court Employees.

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ENDA to end sexual orientation discrimination
September 17, 2007 by Ross Runkel at LawMemo

The odds in favor of enactment of ENDA (Employment Non-Discrimination Act of 2007) are going up.

Almost 90 percent of Fortune 500 companies oppose discrimination on the basis of sexual orientation. (Which is not the same as supporting enactment of ENDA.)

More than 40 big companies are backing the legislation.

A vice president of the US Chamber of Commerce is quoted as saying, "We're cautiously optimistic that we can be neutral on it when it goes to the House floor."

SHRM says "In practice and policy, SHRM supports fair employment practices without regard to a person's sexual orientation or sexual preference. SHRM strongly believes that employment decisions should be made on the basis of an individual's occupational qualifications and experience, and not on factors that have no bearing on job performance."

So, I see some big corporate guns that are backing the legislation, the Chamber is talking about being neutral, and SHRM is saying, well, uh, something.

More from Michael Fox at Jottings By an Employer's Lawyer.

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Sexual orientation, gender identity discrimination unlawful in Oregon
May 09, 2007 by Ross Runkel at LawMemo

Sexual orientation discrimination and gender identity discrimination will be unlawful in Oregon come January 1, 2008.

Senate Bill 2, the Oregon Equality Act, was signed into law today.

The bill adds "sexual orientation" as a prohibited basis for employment and housing discrimination.

"Sexual orientation" is defined as:

an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth.

Also signed into law was House Bill 2007, the Oregon Family Fairness Act, which allows "domestic partnership contracts" in Oregon. The bill was amended to change the phrase "civil union" to "domestic partnership."

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No same-sex benefits for employees
February 07, 2007 by Ross Runkel at LawMemo

Public sector employees in Michigan can't get benefits for their same-sex partners. Why? Michigan’s “marriage amendment” prohibits public employers from recognizing same-sex unions for any purpose.

National Pride At Work v. Governor of Michigan (Michigan Ct App 02/01/2007).

In 2004, Michigan voters approved the “marriage amendment” to the Michigan Constitution. That amendment (set forth at Article I, section 25 of the Michigan Constitution) provides:

“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.”

The court held that the marriage amendment, by its plain language, “prohibits public employers from recognizing same-sex unions for any purpose.”

More particularly, the court held that the marriage amendment prohibits public employers from

  • entering into contractual agreements with their employees to provide domestic partner benefits; or
  • voluntarily providing domestic partner benefits as a matter of policy.

The court reasoned that “[t]he operative language of the amendment plainly precludes the extension of benefits related to an employment contract, if the benefits are conditioned on or provided because of an agreement recognized as a marriage or similar union.”

The court also held that the marriage amendment does not violate the equal protection provision of the Michigan Constitution, since it “does not make arbitrary or invidious distinctions in furthering the legitimate governmental interests of the state.”

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Sexual stereotypes - perceived to be gay
July 22, 2006 by Ross Runkel at LawMemo

Co-workers harassed Christopher Vickers because they thought he was gay. Vickers thought that was sex stereotyping in violation of Title VII, but the 6th Circuit disagreed. Vickers v. Fairfield Medical Center (6th Cir 07/19/2006) (2-1 vote).

The United States Supreme Court in Price Waterhouse v. Hopkins, 490 US 228 (1989) held that making employment decisions based on sex stereotyping (i.e. - the degree to which an employee conforms to traditional notions of what is gender-appropriate) is actionable gender discrimination under Title VII.

The 6th Circuit rejected Vickers' reliance on Price Waterhouse, however, stating "[w]e conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough to encompass [Vickers' case] .... "

The court noted that "Price Waterhouse focused principally on characteristics that were readily demonstrable in the workplace, such as the plaintiff's manner of walking and talking at work, as well as her work attire and her hairstyle." The court also noted that "[b]y contrast, the gender non-conforming behavior which Vickers claims supports his theory of sex stereotyping is not behavior observed at work or affecting his job performance."

The court opined that "[u]ltimately, recognition of Vickers' claim would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination based on sexual orientation would be actionable under a sex stereotyping theory if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices."

The DISSENT argued "I do not believe we can conclude on the basis of the pleadings alone that the harassment endured by the plaintiff was motivated solely by the defendants' perception that he was a homosexual, as distinguished from a belief that for reasons other than sexual preference the plaintiff did not conform to the stereotypical image of masculinity .... Because the majority believes that the case can be resolved on the pleadings alone, I respectfully dissent."

See what some others are saying:

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Don't Ask, Don't Tell - Cook v. Rumsfeld
April 25, 2006 by Ross Runkel at LawMemo

Another reminder that the constitution is rarely the solution when government adopts poor policies.

The military's Don't' Ask, Don't Tell policy was challenged by former military service members who were forced to leave the military due to the policy. They sued claiming violation of 5th amendment due process equal protection and 1st amendment free speech. They lost. Cook v. Rumsfeld (D. Mass. 04/24/2006).

Other courts reached the same conclusion, so why is this case special?

Some lawyers thought that Lawrence v. Texas (US Supreme Court 2003) (striking down the Texas sodomy statute) changed the legal landscape. The usual constitutional rule is that Congress needs only to have a "rational basis" to justify a statute. In some cases (example: race discrimination, some free speech and religion cases) Congress has to have a compelling governmental interest.

The judge in Cook v. Rumsfeld concluded that the Supreme Court used the rational basis test in Lawrence, and therefore, that's still the correct test to use. Using that test, he found ample justification for the Don't Ask, Don't Tell rule.

Leonard Link provides good analysis and details at Boston Judge Rejects "Don't Ask Don't Tell" Challenge

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City's Equal Benefits Law is preempted
February 15, 2006 by Ross Runkel at LawMemo

Council of City of New York v. Bloomberg (New York 02/14/2006) holds (by a 4-3 vote) that New York City's "Equal Benefits Law" is preempted by a state statute and by ERISA.

New York City's law says no city agency can enter a contract for more than $100,000 with a company that fails to provide its employees' domestic partners with benefits equal to those provided to spouses. A "domestic partner" is anyone registered under either the Equal Benefits Law or NYC Administrative Code Section 3-240(a) (Local Civil Rights Restoration Act of 2005).

New York's highest court has ruled the Equal Benefits Law is preempted by a state statute on public works contracts. General Municipal Law Section 103 says "all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder . . . ."

The court says "the Equal Benefits Law violates this requirement by excluding from public contracting any 'responsible bidder' that does not provide equal benefits to domestic partners and spouses."

The court also ruled that the law is preempted by ERISA - the federal Employee Retirement Income Security Act because it "seemingly seeks to ... prescribe the terms of [ERISA-regulated] benefit plans."

A DISSENT by three judges argued that the court should not have reached the merits of the case due to the procedural posture of the case (an Article 78 proceeding) which does not allow for a full examination of all the facts. The dissent would have sent the case back to allow for declaratory judgment action to proceed in the normal course.

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Sexual orientation discrimination outlawed in Washington
February 04, 2006 by Ross Runkel at LawMemo

"Sexual orientation" will no longer be a lawful reason for employers to use in hiring, firing, and setting terms and conditions of employment in Washington State.

The legislature has enacted amendments to the Law Against Discrimination. The new statute, House Bill 2661, was signed by the Governor January 31, and is scheduled to go into effect June 8, 2006.

The amended statute defines "sexual orientation" this way: "heterosexuality, homosexuality, bisexuality, and gender expression or identity."

"Gender expression or identity" will mean: "having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth."

Rumor has it that there will be a a citizen initiative that will delay the effective date and put the matter on the ballot in the fall.

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Lambda Legal's "Of Counsel" newsletter
December 08, 2005 by Ross Runkel at LawMemo

Lambda Legal describes itself as "a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work."

Their bimonthly eNewsletter Of Counsel is a must-read for anyone who needs to keep up-to-date on the litigation strategies being implemented by the group. Whether you agree or disagree, this is a great way to keep informed.

Today's issue includes articles on using common law strategies in states that do not have statutes prohibiting discrimination on the basis of sexual orientation, anti-gay harassment, comments on Supreme Court Justice-nominee Samuel Alito, an update on Jespersen v. Harrah's Casino, HIV discrimination, and more.

Click the button on the left to sign up for the "Of Counsel" newsletter. Or you can read it online.

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Solomon amendment will survive
December 06, 2005 by Ross Runkel at LawMemo

After today's oral argument at the US Supreme Court, it seems beyond doubt that the Solomon Amendment will survive attempts to have it declared unconstitutional.

Law schools that oppose the military's position on gays and lesbians have taken the position that military recruiters should not be allowed on campus. The Solomon Amendment says that to do that means a cut-off of certain federal funds. (Trust me, it's a lot of money.)

I have thought that the law schools' argument was weak: that they have a first amendment right to take federal money and also refuse to allow military recruiters.

A good description of the oral argument, from SCOTUSblog: Solomon Amendment likely to survive

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Solomon amendment tested in US Supreme Court
December 04, 2005 by Ross Runkel at LawMemo

Does the 1st amendment protect schools from losing federal funds when they refuse to allow military recruiters? The US Supreme Court hears oral arguments on that question on December 6 in Rumsfeld v. Forum For Academic and Institutional Rights (No. 04-1152).

  • The Solomon Amendment allows the Secretary of Defense to deny grants to any university that prohibits on-campus recruitment by the military.
  • Most law schools have policies against discrimination on the basis of sexual orientation, and refuse to allow the use of school resources for recruiting by employers who engage in sexual orientation discrimination - including the military.
  • The government response has been to threaten withdrawal of funding - not just for the law school, but for the whole university.
  • A group of schools sued to enjoin the application of the Solomon Amendment on the ground that it impairs the 1st amendment rights of the schools.
  • The trial court refused to issue a temporary injunction.
  • The 3rd Circuit reversed, holding that the schools were likely to prevail on their first amendment arguments.
  • The US Supreme Court granted certiorari to review the 3rd Circuit decision.

Decision below: Forum v. Rumsfeld (3rd Cir 11/29/2004)
Briefs: http://www.lawmemo.com/docs/us/forum/

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Sexual orientation: $1,914,104 verdict affirmed
November 30, 2005 by Ross Runkel at LawMemo

Employment discrimination because of sexual orientation is unlawful in California. And expensive.

Bruce Hope, a gay man, won a jury verdict for $914,104 in economic damages plus $1,000,000 in non-economic damages. On November 30 the California Court of Appeal affirmed. Hope v. California Youth Authority (California Ct App 11/30/2005).

Hope worked as a cook in one of California's youth correctional facilities. He claimed that he was harassed - because he was gay - over a period of about five years. The jury agreed. The employer appealed, arguing that the verdict was not supported by the evidence. (On an appeal the court has to assume that the winner's evidence was true, and I'll do the same here.)

The court did a nice job of laying out the facts (way too much detail to repeat here) and explaining the various elements of sexual orientation harassment.

  • Severe or pervasive. The harassment has to be because of Hope's sexual orientation, and also has to be severe or pervasive enough to alter the conditions of his employment.
    • His immediate supervisor called him a m**f** faggot and "homo." Perhaps 150 times.
    • A security officer in the kitchen called him the same names, and more.
    • He was promoted and then almost immediately that was revoked.
    • The security officer threw trash on the floor after Hope had cleaned it.
    • He was denied merit increases.

  • The employer knew. In order for the employer to be liable, the employer has to have knowledge or be in a position where it should have known.

    • Hope complained often.

    • His own supervisor was one of the perpetrators.

    • Another supervisor knew but did not report it up the chain of command.

    • Sounded to me like just about everybody knew.

  • Corrective action by the employer? There wasn't enough.

    • Hope complained to six people.

    • There was some "Don't do that again" instruction.

    • The offensive conduct continued, and got worse.

  • Economic damages - $914,104.

    • The jury implicitly found that Hope would have worked for the state until retirement age but for the harassment.

    • Although Hope was HIV positive, he had no obligation to prove that he had a normal life expectancy. He didn't have AIDS, and was responding well to medication.

    • Although the employer argued that Hope did not prove he could never work again, it was the employer's burden to prove what he would have earned. The employer produced no evidence as to the amount Hope would have earned, and no evidence as to the availability of comparable employment.

  • Non-economic damages - $1 million. "The award does not shock the conscience."

My view:

  • The appeal was based on a claim of insufficient evidence. I thought there was plenty.

  • Of the three judges, one concurred in the judgment without joining the opinion. I wonder why.

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