Second Circuit holds Title VII has always protected sexual orientation within its protection of “sex”

Following a recent series of cases discussed earlier on this blog, the Second Circuit has held that sexual orientation is, and has always been, included within the meaning of Title VII’s protection of “sex.”

Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.” To the extent that our prior precedents held otherwise, they are overruled.

Source: Zarda v. Altitude Express, Inc., case no. 15-3775 (2nd Cir. 2/26/18).

Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

SCOTUS grants review in Masterpiece Cakeshop case

In a case that pits religious freedoms against anti-discrimination laws, the Supreme Court agreed today to hear the appeal of a Colorado case against a baker that refused to sell a wedding cake to a same-sex couple.  Hear me (Bill Berger) discussing this development on 850 KOA moments after the order.

Source: 062617zor_8759.pdf

Second Circuit signals potential major expansion of Title VII’s protections for sexual orientation

Title VII prohibits discrimination “because of … sex,” and many court decisions have held that “sex” does not include sexual orientation. Thus, homosexuality is not protected by Title VII.

In this case, a panel of the Second Circuit repeated that holding; however, the panel then noted that, if it could consider the issue fresh, as could the Second Circuit en banc  (sitting as a full bench), it believed several arguments, outlined in its decision, would warrant holding that sexual orientation should be protected by Title VII.

The decision signals a potential expansion for protection of sexual orientation at the federal level. Colorado law already protects sexual orientation, as does the law in many states.

The case was Christiansen v. Omnicon Group, Inc., — F.3d — (2nd Cir. 3/27/17).

Eleventh Circuit splits over sexual orientation

In a split decision, following a recent decision by the Second Circuit, the Eleventh Circuit held that sexual orientation is not protected by Title VII.

Colorado law already protects sexual orientation, as does the law in many states.

The case was Evans v. Georgia Regional Hospital, — F.3d — (11th Cir. 3/10/17).

Seventh Circuit expands Title VII to cover sexual orientation

As predicted in earlier postings, the issue of whether sexual orientation is protected by Title VII is likely to see further examination by future courts. Now, the Seventh Circuit has split from those prior courts and held that, at least in its jurisdiction (Illinois, Indiana and Wisconsin), sexual orientation is protected by Title VII.

The split in Circuit Courts suggests a likelihood that this issue will now rise to the Supreme Court.

Colorado law already protects sexual orientation, as does the law in many states.

The case was Hively v. Ivy Tech Community College, — F.3d — (7th Cir. 4/4/17).