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Employment Law Newsletter

Sexual Orientation Discrimination and Employment

Currently, the legal protections against discrimination in the workplace based on sexual orientation are few. Many of the federal antidiscrimination laws that protect individuals from discrimination based on sex, race, national origin and religion have not been extended to sexual orientation. However, the 2003 US Supreme Court decision in Lawrence v. Texas may have opened the door for increased protections against sexual orientation discrimination in the public sphere, including at work.

Federal Measures

Title VII, which provides for protection against discrimination based on race, color, national origin, sex or religion, has been found not to afford protection against discrimination based on sexual orientation. The protection against sex discrimination has been interpreted to mean against gender discrimination and not against sex-related behavior.

However, homosexuals and lesbians may be able to bring a cause of action for same-sex harassment under Title VII for quid pro quo and hostile work environment claims. These claims can be difficult to prove. If the employer harasses men and women equally, then courts have found the harassment is not based on sex, and thus, no Title VII claim exists. Additionally, if the harassment is based on a perceived belief by others that the individual is homosexual, then there may not be a Title VII claim.

The Americans with Disabilities Act (ADA) specifically precludes homosexuality, lesbianism, transsexualism and transgenderism as disabilities protected by the federal law.

Federal civil servants have some protections from sexual orientation discrimination based on an executive order signed by President Bill Clinton prohibiting this type of discrimination in employment decisions for federal civilian jobs. However, sexual orientation still may be considered as a factor prior to issuing security clearances for certain federal positions.

The Supreme Court's decision in Lawrence v. Texas may eventually have implications for those seeking protection from sexual orientation discrimination at work. In the landmark decision, the majority found that individuals have a privacy interest via the Due Process Clause of the 14th Amendment in conducting consensual, private sexual relations. Other employment law cases challenging adverse employment decisions based on the conduct of employees once they leave the work place have been successful. The Lawrence decision eventually may serve as a basis for a similar claim based on the sexual activities of consenting adult employees at home.

State Measures

Many states have amended their equal employment statutes to include the prohibition of discrimination based on sexual orientation. The coverage of these statutes varies, from covering only state and local government employees to also including private employees. In some states, the governors have issued executive orders that protect state government employees from sexual orientation discrimination. Some cities also have issued ordinances banning the practice to cover local and municipal employees as well as the private employers who contract with the city.

To learn more about the existence of these state law protections against sexual orientation discrimination, contact an experienced employment law attorney in your area. He or she can evaluate your specific situation and advise you on the types of legal relief that may be available to you.

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Legal News & Case Summaries

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Case Summaries

Labor & Employment Law

[06/25] Malone v. Lockheed Martin Corp.
In plaintiff's suit for employment discrimination based on race and retaliation, district court's grant of defendants' motion for judgment as a matter of law is affirmed where, for substantially the same reasons as the court indicated below, the record reveals no significant evidentiary basis for the verdict.

[06/25] Pickett v. Sheridan Health Care Ctr.
In plaintiff's Title VII suit against her former employer for being fired in retaliation for her complaints about sexual harassment by residents of defendant's nursing home, district court's denial of defendant's motions for a new trial and remittitur are affirmed where: 1) plaintiff presented enough evidence to persuade a reasonable jury that her complaints caused defendant to fire her; 2) it was not an abuse of discretion to deny the motion for a new trial on the basis of plaintiff's counsel's closing arguments; 3) it was not an abuse of discretion in denying remittitur on the compensatory damages as enough evidence supported a jury award of $25,000, which is well within the $200,000 cap set out in 42 U.S.C. section 1981a(b)(3)(C); and 4) it was not an abuse of discretion in denying remittitur on the punitive damage award and the logic of Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) does not apply to this Title VII case.

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ERISA

[06/24] Edwards v. A.H. Cornell & Son, Inc.
In plaintiff's suit against her employers and supervisors, claiming that she was terminated in violation of section 510 of ERISA and state common law after complaining to management about alleged ERISA violations, district court's grant of defendants' motion to dismiss is affirmed as unsolicited internal complaints are not protected activities under the anti-retaliation provision of section 510 of ERISA.

[06/24] Durakovic v. Bldg. Serv. 32 BJ Pension Fund
In an ERISA challenge to a union disability-benefits denial, dismissal of the complaint is reversed where: 1) a fund organized pursuant to 29 U.S.C. section 186(c)(5) is conflicted within the meaning of Metropolitan Life Insurance Company v. Glenn, 128 S. Ct. 2343 (2008); 2) the district court should have accorded the conflict in this case more weight; and 3) no rational trier of fact could have failed to conclude that the benefits denial was arbitrary and capricious.

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Workers' Comp

[06/24] Bifulco v. Patient Bus. & Fin. Serv., Inc.
In plaintiff's wrongful termination suit against her former employer, Fifth District's reversal of trial court's grant of defendant's motion for summary judgment is affirmed as workers' compensation retaliation claims brought against the state under section 440.205 are not subject to the presuit notice requirements of section 768.28(6)

[06/22] Hawaii Stevedores, Inc. v. Ogawa
In a petition for review of a decision of the Benefits Review Board (BRB) affirming an Administrative Law Judge's (ALJ) grant of disability benefits under the Longshore and Harbor Workers' Compensation Act, the petition is granted in part where: 1) the mere fact that an expert witness talked with a party's lawyer and then altered his or her opinion language, though it might be considered relevant, did not require a factfinder to find that expert witness was other than credible; and 2) the ALJ's finding of the maximum medical improvement date was not supported by substantial evidence. However, the petition is denied in part where: 1) the ALJ's finding that petitioner did not meet its burden of demonstrating prejudice was supported by substantial evidence, and respondent's late notice was properly excused; and 2) respondent's stroke qualified as a compensable injury under the Longshore Act.

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Civil Rights

[06/25] Malone v. Lockheed Martin Corp.
In plaintiff's suit for employment discrimination based on race and retaliation, district court's grant of defendants' motion for judgment as a matter of law is affirmed where, for substantially the same reasons as the court indicated below, the record reveals no significant evidentiary basis for the verdict.

[06/25] Ruiz v. Cty. of Rockland
In an action against a county for national origin and race discrimination under Title VII and the Equal Protection Clause, summary judgment for defendant is affirmed where: 1) the district court erred in finding that plaintiff was not qualified for his position based on evidence of plaintiff's misconduct; but 2) plaintiff failed to raise an inference of discrimination.

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