Our colleagues at Epstein Becker Green has a post on the Retail Labor and Employment Law blog that will be of interest to our readers in the health care industry: “NYC Commission on Human Rights Issues Guidance on Employers’ Obligations Under the City’s Disability Discrimination Laws.”

Following is an excerpt:

The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law. …

Read the full post here.

State attorneys general from Louisiana, Missouri, Oklahoma, Texas, Michigan, Nebraska, and South Dakota have joined Arkansas (collectively the “States”) in an amicus brief to the Eighth Circuit, urging the court not to join the Seventh Circuit and Second Circuit in interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”) to prohibit sexual orientation discrimination.

The States submitted this brief in a case brought by Mark Horton against Midwest Geriatric Management LLC (“Midwest Geriatric”) in which the plaintiff alleges sexual orientation and religious discrimination in violation of Title VII. More specifically, Horton alleges that Midwest Geriatric revoked his job offer after the company learned he was gay. In their brief, the States assert that Horton wrongly petitioned the court to ignore precedent and reverse its prior position that sexual orientation discrimination is not covered by Title VII.

The States argue that until last year, when the Seventh and Second Circuits expanded the scope of Title VII to encompass sexual orientation discrimination, federal courts had unanimously found that sexual orientation was not a protected category under Title VII, and the Eighth Circuit should follow this long-standing view. The States add that, despite numerous opportunities to revise Title VII to include sexual orientation, Congress has chosen not to do so. Finally, the States contend that Horton’s arguments simply are not persuasive.

In addition to the States’ brief, the Eighth Circuit has also received amicus briefs supporting Horton’s argument from 18 other states and Washington D.C., in addition to the U.S. Equal Employment Opportunity Commission and various businesses.

The Eighth Circuit’s decision remains pending, and we will be watching for it. In the meantime, employers operating within the Eighth Circuit—comprising Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota—are encouraged to evaluate their non-discrimination policies with this potential change to the federal law in mind, to the extent they have not already done so to comply with state or local laws.

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex.

In reaching its decision, the court concluded that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” As the court explained, “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”  Finding that Stephens would not have been fired if she had been a woman who sought to comply with the women’s dress code, the court determined that Stephens’s sex impermissibly affected the termination decision.

Harris Funeral Homes attempted to defend its termination decision under the Religious Freedom Restoration Act (“RFRA”), but the majority rejected this argument: “RFRA provides the funeral home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden [owner Thomas] Rost’s religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination.”

In addition to providing Title VII coverage to transgender and gender nonconforming individuals, the Sixth Circuit’s decision marks another victory for the EEOC, whose position was similarly adopted less than two weeks ago by the Second Circuit in Zarda v. Altitude Express. In that case, the Second Circuit held that discrimination on the basis of sexual orientation is discrimination based on sex and prohibited by Title VII.  As federal courts begin to reexamine earlier rulings that deny coverage to LGBT employees, employers are advised to conform their policies to EEOC guidance prohibiting discrimination based on gender identity or expression.

In a move that could have broad national effects on gay rights in the workplace, the Second Circuit ruled that discrimination based on sexual orientation violates Title VII of the Civil Rights Act, deciding in favor of the estate of a deceased skydiving instructor who was allegedly fired for telling a client he was gay.

On Monday, the United States Court of Appeals for the Second Circuit became the second federal appeals court to rule that Title VII encompasses sexual orientation discrimination in Zarda v. Altitude Express, joining the Seventh Circuit in its decision last year. This issue has divided courts for years, and even caused a split between the EEOC and the Department of Justice, with the former arguing in favor of including sexual orientation under Title VII’s protections and the latter arguing against it. The Second Circuit’s decision furthers a circuit split, which occurred when the Eleventh Circuit held that sexual orientation discrimination is not actionable under Title VII.

Chief Judge Robert A. Katzmann delivered the majority opinion and concluded, “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. Sexual orientation discrimination is a subset of 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.”

In so holding, the majority adopted each of the theories advanced by the EEOC. Applying the “comparative test” to determine whether an employment practice constitutes sex discrimination, the court considered the example in the Seventh Circuit’s decision Hively v. Ivy Tech Community College. The court compared a lesbian woman to a heterosexual man and rejected the framing urged by the government, which would compare a woman attracted to people of the same sex with a man attracted to people of the same sex.  Finding that sexual orientation acts as a proxy for sex, the majority concluded that a lesbian treated differently than a heterosexual man due to her sexual orientation would not have been subject to an adverse action “but for” her sex.

The majority opinion also concluded that sexual orientation discrimination constitutes actionable gender stereotyping, held to be unlawful under Price Waterhouse v. Hopkins, and associational discrimination, borrowing principles from Loving v. Virginia.

In dissent, Judge Lynch argued that Congress did not intend to cover sexual orientation discrimination when drafting Title VII. The majority court acknowledged this fact, but also recognized that the legal framework for evaluating Title VII claims has changed dramatically over time. “Because Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories,” Katzmann explained, “it falls to courts to give effect to the broad language that Congress used.”

Employers operating within the Second Circuit – comprising New York, Connecticut, and Vermont – already should have in place policies prohibiting sexual orientation discrimination because those state laws expressly prohibit such conduct. But this decision provides a roadmap for the potential adoption by other circuits around the country, and suggests that the Supreme Court may settle the current circuit split.  Thus, employers are encouraged to adopt nationwide policies prohibiting sexual orientation discrimination to the extent they have not done so.

Additionally, the sweeping adoption by the majority opinion of the positions pressed by the EEOC should signal to employers to take seriously the actions by and guidance from the EEOC in this and other matters. For example, the EEOC will finalize new enforcement guidance on harassment shortly, and employers should expect the EEOC to aggressively enforce that guidance, including with respect to harassment based on sexual orientation.

See also Nathaniel Glasser’s video interview on this topic, from next Monday’s Employment Law This Week: “Second Circuit Says Title VII Covers Sexual Orientation Discrimination.”

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

The law also offers clarity on the definition of “gender,” and continues to include a person’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic within its scope.

The new law will take effect on May 11, 2018.

The District of Columbia Office of Human Rights recently partnered with the National LGBTQ Task Force to publish a resource guide, “Valuing Transgender Applicants & Employees: A Best Practices Guide for Employers” (the “Guide”), designed to support employers in creating workplace and hiring policies that prevent discrimination against transgender and gender-nonconforming individuals. The guide is meant to lay the framework for building a culture of inclusion in the workplace that goes beyond legal obligations.

The suggested best practices include ensuring managers and coworkers use the names and pronouns preferred by transgender employees, maintaining the confidentiality of employees’ gender identity, implementing gender-neutral dress codes, providing access to restroom facilities corresponding to employees’ gender identity, and building an environment in which harassment or off-color comments are not tolerated.

The Guide emphasizes communication between employers and their transgender or gender-nonconforming employees and applicants so that the employer may understand what transgender employees believe a safe and inclusive workplace should look like and respond accordingly.  Recognizing that each individual has different needs, employers are encouraged to work with transitioning employees to develop a plan for them to transition in the workplace.  That said, transgender employees are not expected to shoulder the responsibility of educating coworkers or of ensuring their comfort.  Particularly because DC law prohibits discrimination based on gender identity or expression, employers should establish clear rules requiring professional demeanor, prohibiting transphobic and other harassing behavior, and prompting quick responses to any violations.

Following DC regulations, the Guide also instructs employers to provide access to restrooms and other gender-specific facilities consistent with employees’ gender identity or expression. Consistent with guidance from the EEOC and OSHA, transgender employees should never be required to use a separate gender-neutral facility – even if a cisgender employee expresses discomfort about sharing a gendered facility with a transgendered coworker.  In that case, the cisgender employee should be offered the use of a separate facility.

While the Guide has particular applicability for employers that operate in the District of Columbia, all employers should take note, as the recommended best practices are consistent with the way federal agencies are interpreting and enforcing federal law.