April 09, 2008
Houston Chronicle Coverage of Lopez v. River Oaks case
The Houston Chronicle coverage of the Lopez v. River Oaks case can be found here.
April 07, 2008
Transsexual Plaintiff Defeats Summary Judgment--S. Dist. of Texas
The United States District Court for the Southern District of Texas denied both the plaintiff's and the defendant's motions for summary judgment in Lopez v. River Oaks on April 3, 2008. This case is interesting because there is no current Fifth Circuit decisions addressing the issue of whether a transsexual can proceed with a Price Waterhouse-type gender non-conformity claim under Title VII.
In that case, a pre-operative male-to-female transsexual applied for a job with the defendant. On her job application form, she provided multiple names (Izza and Raul--her legal name). During her interview, she thought that the employer was aware of her transgender status. She was offered a job, however, the job offer was rescinded after a background check revealed she was male. Although she quit her other job to accept the position, she was informed by the defendant that the job offer was going to be rescinded due to her "misrepresentation" of her gender on her job application.
First, the court recognized that a transsexual plaintiff may state a cause of action for gender non-conformity using the Price Waterhouse sex stereotype analysis. Although the court found that the plaintiff's argument that discrimination against transsexuals is sex discrimination per se was waived, the court recognized that transsexual plaintiffs can state a cause of action for sex stereotypes (in line with decisions like Smith v. City of Salem from the Sixth Circuit Court of Appeals). The court also found that there may have been direct evidence of discrimination in this case due to the letter rescinding the job offer based on her alleged "misrepresentation" of her sex. Although a jury might find the letter reflected a neutral policy (against hiring individuals with application materials that are inconsistent with the background checks), the jury could also understand this explanation as pretextual and a cover-up for sex discrimination. Thus, the court denied both parties' claims for summary judgment. Where sex is not a bona fide occupational qualification (or an essential job qualification), the court found that a potential employee has no legal duty to reveal her Gender Identity Disorder or her biological sex to the employer. The entire opinion can be found on the Lambda Legal webpage here.
First, the court recognized that a transsexual plaintiff may state a cause of action for gender non-conformity using the Price Waterhouse sex stereotype analysis. Although the court found that the plaintiff's argument that discrimination against transsexuals is sex discrimination per se was waived, the court recognized that transsexual plaintiffs can state a cause of action for sex stereotypes (in line with decisions like Smith v. City of Salem from the Sixth Circuit Court of Appeals).
The court also found that there may have been direct evidence of discrimination in this case due to the letter rescinding the job offer based on her alleged "misrepresentation" of her sex. Although a jury might find the letter reflected a neutral policy (against hiring individuals with application materials that are inconsistent with the background checks), the jury could also understand this explanation as pretextual and a cover-up for sex discrimination. Thus, the court denied both parties' claims for summary judgment. Where sex is not a bona fide occupational qualification (or an essential job qualification), the court found that a potential employee has no legal duty to reveal her Gender Identity Disorder or her biological sex to the employer. The entire opinion can be found on the Lambda Legal webpage here.
February 07, 2008
New York Appellate Court Recognizes Canadian Same-Sex Marriage
The plaintiffs, a couple married in Canada in 2004, moved to New York and claimed employment spousal benefits from their employer, Monroe Community College. Martinez v. County of Monroe, 2008 WL 275138 (N.Y. App. Div. Feb. 1, 2008). The College denied the benefits, claiming that New York did not recognize same-sex marriages. The plaintiffs asserted that the defendant violated the employee's rights by discriminating against her on the basis of her sexual orientation in violation of the state's equal protection clause and in violation of Executive Law Section 296 (forbidding employment discrimination on the basis of sexual orientation). Id. at *1. In other words, had she been heterosexual and married a man in another state, the College would have recognized her marriage and permitted her to obtain benefits for her husband. Thus, she was discriminated against because she was a lesbian and married a same-sex partner. The appellate court agreed, relating to the violation of Executive Law Section 296, and ordered the College to grant her spouse benefits. Id.
The court noted that out of state marriages are recognized in New York unless they are prohibited by: (1) the "positive law" of New York (or are prohibited by statute); or (2) "natural law" (or moral prohibitions such as a ban on incest or polygamy). Id. The court explained that New York has not enacted a ban on same-sex marriages or a mini-DOMA. Id. at *2. Similarly, there is no indication that same-sex marriage violates New York public policy. Id. Although New York courts have not recognized a right to same-sex marriage under the State Constitution, the courts have not denied that the legislature could choose to pass laws permitting same-sex marriage. Id.
Because the "sole reason for defendants' rejection of the marital status of the plaintiff is her sexual orientation," they violated the employment non-discrimination provisions of Executive Law Section 296. Id.
Thus, the court avoided the thornier issue of the equal protection analysis. This would have required the court to apply to the lowest form of review to the alleged sexual orientation discrimination. See Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). In that instance, the court would have had to uphold the statute if the school could justify that the different treatment was rationally related to a legitimate governmental interest. By deciding the issue under employment discrimination law, the court avoided having to apply the lowest form of review to the case and, potentially, permitting the State to discriminate based on a reasonable justification.
December 20, 2007
Transsexual May Proceed with Title VII Claim--Schroer v. Billington (D.C. 2007)
The United States District Court for the District of Columbia had an opportunity to rule on a second motion to dismiss based on a transsexual's Title VII claim. Schroer v. Billington, 2007 WL 4225667 (D.D.C. Nov. 28, 2007). The plaintiff, a male-to-female transsexual was first hired by the Congressional Research Service for a position as a terrorism research analyst as a man. Id. at *1. Shortly after she was hired, however, she met with Charlotte Preece to discuss her position over lunch. Id. At that time, Schroer informed Preece that she was undergoing a transition from male to female and that she was about to change her name and begin dressing as a woman. Id. Preece said that Schroer had given her something to think about and proceeded to terminate Schroer's employment. Id. The amended complaint also notes that Schroer was not hired because "in Preece's view, Schroer's 'appearance when presenting as female would not conform to [members of Congress'] social stereotypes regarding how women should look[.]'" Id. at *2. Among Schroer's claims was a Title VII claim based on discrimination "because of . . . sex." 42 U.S.C. sec. 2000e-2(a)(1). Id. at *1
The court denied Billington's (chief librarian of the CRS) first motion to dismiss, asking "the parties to develop a factual record that 'reflects the scientific basis of sexual identity in general, and gender dysphoria in particular.'" Id. at *2. The parties compiled the record and the defendant filed a second motion to dismiss. Id.
The court denied the motion to dismiss for the Title VII claim because Schroer was able to set forth a Price-Waterhouse sex stereotype claim. Id. at *4. The court points out that the fact that Schroer is transsexual is not in and of itself a bar to her claim. Id. at *3. Similarly, if Schroer had been discriminated against solely because of her disclosure of her gender dysphoria (or only because she was a transsexual), she could not make out a claim. Id. However, here, where she was discriminated against for her failure to "conform to Preece's sex stereotypical notions about women's appearance and behavior[,]" her Title VII claim survives the motion to dismiss. Id.
Interestingly, the court goes on to make two additional points:
(1) The defendant's definition of sex for Title VII purposes is too narrow if it is simply based on a person's genetic make-up. Sex includes gender discrimination as well. Id. at *4 (citing Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004)).
(2) The plaintiff's defintion of sex under Title VII, however, "may be too expansive." Id. Here, the court addresses the legislative history surrounding the ENDA. The court notes that Congress did not pass a version of the ENDA encompassing gender identity discrimination and, to the extent that legislative history is a factor in statutory interpretation, "one proceeds with caution when even one house of Congress has deliberated on a problem and . . . negotiated a compromise solution." Id.
Thus, the court seems to imply that whatever sex stereotype discrimination may include (after Price Waterhouse) it may not include discriminaton based on "gender identity." This is a fine line to draw in the sand, it seems. Or, perhaps the court is simply re-stating what many other courts have said already: one cannot bring a claim simply because he or she was discriminated against because of his or her transsexuality, but only if he or she can demonstrate that gender stereotypes came into play in the hiring/firing/etc. decision. This type of analysis, however, can be easily manipulated. If a court would like to get rid of a particular plaintiff's claim, they merely have to pile enough "facts" into the "gender identity" camp. If they would like to let the claim stand, on the other hand, they can construe those exact same facts as "gender stereotypes."
If only Congress would pass a version of the ENDA protecting against sexual orientation discrimination and gender identity discrimination, alike, we could avoid this messy logic.
December 18, 2007
Hammer v. UM case gains press recognition
In an earlier post, I described the ongoing litigation between Professor Hammer and the Univ. of Michigan. Prof. Hammer asserts that he was denied tenure and subjected to a hostile work environment on the basis of his sexual orientation. This lawsuit could shape the law, Jon Davidson (director of Lambda Legal) points out, in those states (like Michigan) that do not have a statute on the books prohibiting workplace discrimination on the basis of sexual orientation. See the Article in Bloomberg.com. Also, take a look at the earlier post where I mention that this "contract" theory of the case stems from the lack of other, statutory claims.
November 28, 2007
College Insures Pets, Not Partners!
Palm Beach Community College offers qualifying employees discount group medical insurance for their pets. See PalmBeachPost Article here. This is a nice benefit--I have three cats myself and I certainly could use some discount pet insurance.
However, the same school does not provide domestic partner coverage. So, in other words, if you are gay, you can insure Fluffy but not your life companion. Great!
Of course, only two public colleges currently provide domestic partner benefits in Florida (Univ. of Florida and Florida International Univ.), however, how many colleges provide pet benefits?
In fact, permitting any employee (gay or straight) to cover a domestic partner on his or her insurance would not cost the college a dime, according to the PalmBeachPostArticle, as the college only pays premiums for the employee his or herself (okay, it may cost a dime, as indicated by an earlier article written about the University of Florida's plan, which costs about $500,000 to 1 million).
But what does this have to do with the law, you ask? Well, Florida legislators have unsuccessfully introduced bills in the past to prohibit the use of state funds for domestic partner benefits. Also, many counties in Florida have passed laws granting domestic partner benefits to state employees.
Now, I love my three cats, I really do. But, there is no comparison between the health of my pet and the health of my partner. If both my cat and my spouse became sick on the very same day and I only had time to rush one of them to the doctor--guess who it would be? Sorry Fluffy--you'll have to wait.
November 16, 2007
Court Overturns PA Hate Crimes Bill
A Pennsylvania State Court judge overturned a Pennsylvania bill adding language to a hate crimes bill. It listed as a hate crime certain crimes motivated by the sexual orientation or disability of the victim.
The original purpose of the bill was to protect against "agricultural vandalism and crop destruction." The judge stated that the bill must be overturned because, "no matter how salutary the purpose of a bill may be, it still must comport with constitutionally mandated requirements for passage . . . ." See Article in Philly.com entitled "Court Throws Out PA's Hate Crimes Law."
November 13, 2007
Montgomery County, Maryland Transgender Bill
The County Council for Montgomer County, Maryland is considering a bill granting housing and employment protection to transgendered individuals. However, it also included a provision that would permit transgendered individuals to use public restrooms. Those opposing the bill were up in arms about this provision, claiming that it would result in "indecent exposure." See the Washington Post's Coverage of the issue (Nov. 11, 2007; Transgender Bill May Be Close to Passing). The bill's sponsor stated that she will pull the restroom language and thinks that the bill will pass without it. However, the broad language of the rest of the bill may be read to include the right to use public restrooms nonetheless.
This brings up an important point. Why are restrooms such a hot button issue? It seems that generally people are really offended by the idea of a male to female transsexual using the women's restroom when she has not yet had genital surgery. I have a litany of responses to this, but I will limit my comments to three:
(1) As I pointed out in an earlier blog post, women's restrooms generally have enclosed stalls. Thus, how would anyone suffer from "indecent exposure"? Also, even in male restrooms, there is generally at least one stall, so the same logic applies.
(2) Most male to female transsexuals would rather not have anyone see their "male" parts. Why would any transsexual individual "flash" her genitalia at the general public? In my view, this kind of concern is really a front for a deep seated fear of those who are different. In fact, it is similar to comparing transgendered individuals with sick individuals who like to expose their private parts in public to young children. It is an unacceptable comparison.
(3) Why don't we just add additional "family" or "gender neutral" single stall restrooms to public buildings? In this manner, we will never have the issue of forcing a transgendered individual to pick whether he feels like a male or a female today. Not to mention the fact that intersex individuals are put to the same task as well.
November 07, 2007
HOUSE PASSES ENDA
The U.S. House of Representatives passed the Employment Non-Discrimination Act today by a 235-184 vote.
According to the Human Rights Campaign, "[i]n 31 states, it is currently legal to fire someone based on their sexual orientation. In 39 states, it is legal to fire a person for being transgender."
Unfortunately, the ENDA that passed did not include protection for transgendered individuals due to a lack of support in the House. However, the fact that the ENDA passed is a sign that lawmakers are interested in protecting gays and lesbians against discrimination at work--and that is a start.
November 01, 2007
NY Dept. of Correctional Servs. Officer Wins $850,000 for Sexual Harassment
The NY Dept. of Corrections Officer was subjected to sexually offensive language, drawings, etc. by her supervisor at a maximum security prison. Humig v. New York State Dep't of Corr. Servs., N.Y. Div. of Human Rights, No. 7905228 (Oct. 11, 2007). The taunts stemmed from her status as a lesbian and a woman. Due to her sex and her sexual orientation, she was suffered from a hostile work environment and, when she reported the incident, retaliation.
The administrative law judge noted that the harassment was pervasive and that the facts of this case "shocks the conscience" because "Complainant's life was placed in grave danger solely because of her sexual orientation and her gender." Id. Her supervisor went so far as to write derogatory comments about the officer on the shared employee work calendar. Due to the hostile work environment and retaliation suffered when she reported the incident, the officer was awarded $850,000 in compensatory damages.
The facts of this case truly shock the conscience, as the DOJ Officer was subjected to threats and taunts by her supervisor. Not only was she injured by the comments and pervasive remarks, she was also at risk from the male inmates (who might have interpreted the disrespectful behavior as an appropriate way to treat the officer).
October 03, 2007
HRC Workplace Rating for LGBT Employees
The Human Rights Campaign has released its LGBT workplace ratings. It indicates that 195 major US companies received a 100% score for treatment of LGBT employees. See the HRC website here. This is good news, but it does not prevent the need for the ENDA. In fact, if these companies decide to change their policies towards LGBT employees, there is no remedy. If the ENDA is passed, LGBT employees will have some assurance of continued respectful treatment in the workplace and a remedy against discrimination.
October 02, 2007
ENDA on Hold
Well, the removal of transgendered individuals from the ENDA has caused an uproar amongst LGBT support groups. Due to the massive response to the change in the legislation, a vote on the Act has been post-poned.
According to an article in the San Francisco Chronicle, "the intense backlash by the gay community surprised House Democratic leaders." Really? It did not come as a surprise to me at all. Transgendered individuals are part of the LGBT community--and a partially helpful Employment Nondiscrimination Act is akin to a public announcement that only some individuals in the LGBT community deserve legal protection.
October 01, 2007
Transgender Protection Removed from ENDA
As predicted by William Turner's previous blog on the ENDA, transgender protections have been removed from the Act by the House of Representatives. This is a strange move, given that trangendered individuals are still included in the Hate Crimes Act, which was passed by the Senate last week. See San Francisco Chronicle Article from 9/28/07.
Regarding the change, Barney Frank, D.-Mass. said:
"Simply protecting, or trying to protect someone against assault is very different from saying you have to hire the person and let them live here and sleep here, etc., etc." Frank said. "Obviously, we didn't think that was persuasive." --San Francisco Chronicle.
It is not "persuasive" to state that transgendered individuals have a right to work free from harassment and discrimination? According to Frank, they only have a right to live in an environment that is "hate crime" free. But, arguably, the right to work free from discrimination is even more important. Without a job, an individual has nowhere to live, cannot afford to eat, etc.
How can you reconcile passing a bill to protect an entire group of individuals from hate induced crimes and a failure to protect the same group from discrimination at work in a subsequent bill (hate manifested in a different manner)?
September 26, 2007
10th Circuit Denies Title VII Protection to Transsexual Plaintiff
In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.
Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female. She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms. Id. at *1-2. Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment. Id. at *2. Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia. Id.
First, the court held that Title VII's prohibition against workplace discrimination on the basis of "sex" does not include transsexuals because it only protects against discrimination discrimination against '"women because they are women and men because they are men.'" Id. at *4 (quoting Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984)). The court noted, however, that "[s]cientific research may someday cause a shift in the plain meaning of the term 'sex' so that it extends beyond the two starkly defined categories of male and female." Id. at *5 (emphasis added).
Perhaps the Tenth Circuit is unaware of current data specifically explaining that "sex" (at least on a biological level) is not binary. In other words, intersex individuals (with both male and female biological characteristics) exist and clear scientific and medical research provides positive proof of this fact. See, e.g., Clinical Guidelines for the Management of Disorders of Sex Development in Childhood. See also Sara R. Benson, Hacking the Gender Binary Myth: Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J. L. & Gender 31 (2005). In fact, courts have recognized this fact as well when addressing marriage and name changes for transgendered individuals. See, e.g., In re Heilig, 816 A.2d 68, 72 (Md. 2002) (citing Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz. L. Rev. 265 (1999)).
Thus, the Tenth Circuit's reasoning seems flawed, especially due to the fact that it relies so heavily on the claim that there are only two sexes when excluding transsexuals from Title VII protection.
Next, the court decided not to address the gender nonconformity issue as Etsitty failed to establish an issue of material fact as to whether the reason proffered by UTA in support of firing her was pretextual. Etsitty, 2007 WL 2774160, at *6.
This element of Title VII (pretext) is meant to allow the plaintiff's claim to survive summary judgment so long as he or she can demonstrate that the employer's '"proffered explanation is unworthy of credence.'" Id. at *8 (quoting Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218 (10th Cir. 2003)).
Here, UTA management claims that they are afraid of liability due to Etsitty's use of women's restrooms. This potential "liability" would stem from the fact that women using such restrooms would observe a "UTA employee with male genitalia . . . using the female restroom." Id. at *2.
Honestly, how would such a thing happen? I have never viewed another woman's private parts while using the restroom. Why not? Because women's restrooms have stalls! Unlike male restrooms, where individuals use either a stall or standing urinal (where genitalia might be public), women's restroom stalls are quite private. Are the employers in this case suggesting that this transsexual must be a exhibitionist due to her transsexual status? In other words, do they think that simply because she is in transition she will flaunt her male genitalia for all to view in the restroom? I think not. Why? Because transsexuals generally would rather be seen as their transition sex/gender, not a mix. In fact, Etsitty clearly states that she would have had the operation already, but she could not afford it (which is no surprise as the operation itself is very expensive and generally not covered by health insurance companies). Id.
In my humble opinion, Etsitty has established pretext and should be permitted to pursue her claim past the summary judgment stage.
Interestingly, UTA management said that they would gladly give Etsitty her job back once she has fully transitioned (ie. after the surgery). Id. However, she could not afford the surgery when she had a job, so how will she afford the surgery after her dismissal?
Unsurprisingly, the court also dismisses her equal protection claim based on the analysis of her Title VII claim. Id. at *10.
September 25, 2007
Transgender Employment Rights--Progress in Florida
As noted by our fellow lawprofessorblogs blogger, at the Workplace Prof Blog, Palm Beach and Broward counties might extend anti-discrimination protection to transgendered individuals in the workforce. A comprehensive list of cities, counties, and states protecting workers for gender expression and identity can be found on the Transgender Law and Policy Institute website.
Florida became entangled in a discussion about transgendered individuals at work due to the highly publicized firing last March of "Largo City Manager Susan Stanton, who transitioned from male to female . . . ." See South Florida Sun-Sentinel Article.
Workplace rights for transgendered individuals are particularly salient, as many transgendered individuals live in poverty (either they cannot get hired due to discrimination or they cannot keep the job they have due to discrimination, as demonstrated by the Stanton case). It will be interesting to follow the developments in Florida in particular, as the laws of the state are generally non-supportive of LGBT individuals in the area of marriage and employment discrimination. See Lambda Legal's summary of Florida Laws.
Why are Republicans Opposed to Discrimination at Work?
If, as William points out, Republicans do not favor legislation prohibiting discrimination based on sexual orientation in employment, why do they express distaste for such discrimination at work?
The answer could come down to simple economics. If a worker is producing money for the company or industry and is the best one for the job, then, regardless of race, gender, or sexual orientation, that person should be promoted. This kind of economic-based logic seems to hold quite a bit of clout with Republicans, who tend to be fiscal conservatives.
Just a thought . . .
On the Other Hand...
If 77% of Republicans now oppose employment discrimination based on sexual orientation, that is probably a new high. It is not, however, as unusual as it might seem. Significant majorities of Americans have opposed employment discrimination based on sexual orientation since at least the 1970s. For an overview that is now somewhat dated but still accurate on its own terms, see Alan Yang, From Wrongs to Rights, 1973 to 1999: Public Opinion on Gay and Lesbian Americans Moves Toward Equality (this link leads to a PDF file).
Such stated opposition to sexual orientation discrimination in employment does not necessarily translate to support for legislation to prohibit the practice, however. As Gregory Lewis and Marc Rogers reported, also in 1999, a significant percentage of Americans who claim to oppose sexual orientation discrimination in employment still do not support legislation prohibiting the practice. Presumably this position reflects a belief that federal regulation is simply not an appropriate remedy. See Gregory B. Lewis and Marc A. Rogers, Does the Public Support Equal Employment Rights for Gays and Lesbians?, Gays and Lesbians in the Democratic Process: Public Policy, Public Opinion, and Political Representation (Ellen D.B. Riggle and Barry Tadlock, eds. 1999). See also, Jeni Loftus, America's Liberalization in Attitudes toward Homosexuality, 1973 to 1998, 66 AMERICAN SOCIOLOGICAL REV. 762-82 (2001).
Although the focus of the present and previous posts is employment discrimination, it is also worth noting, as these authors make clear, that opposition to employment discrimination on the basis of sexual orientation does not necessarily indicate support for any other lesbian/gay civil rights claim. The existing data indicates that many of the 77% of Republicans who claim to oppose sexual orientation discrimination in employment would also oppose recognition of same-sex marriages.
September 24, 2007
New Support for HR 2015
A study conducted this summer by Fabrizio, McLaughlin and Associates shows that even Republican voters believe that firing someone simply due to sexual orientation status is wrong. 77% of the Republican voters polled believe that such discrimination at work is wrong. The most fascinating part of the study is that 67% of "moral" voters, including born again christians and evangelical christians agree. See Houston Chronicle Article from Sept. 21.
This lends even more support for HR 2015, a bill that would prohibit workplace discrimination based on sexual orientation. See my earlier post on HR 2015. Hopefully, this evidence will persuade legislators to pass the bill, however, in my opinion, it is unlikely that these Republican voters feel strongly enough about the issue to mobilize in support of the bill.
September 16, 2007
Support for H.R. 2015: Employment Non-Discrimination Act
On April 24, 2007, the Employment Non-Discrimination Act of 2007 was proposed to Congress. The new federal legislation is meant to "provide a comprehensive Federal prohibition of employment discrimination on the basis of sexual orientation or gender identity" and would protect certain employees from employment discrimination on those bases. The Employment Non-Discrimination Act of 2007, H.R. 2015 (as of Sept. 16, 2007).
Basically, the Act would provide coverage where Title VII is currently lacking (at least according to many courts), as the text of Title VII provides protection against discrimination on the basis of "sex." Many courts interpret "sex" as different from "gender" and/or "sexual orientation" in order to preclude protection for gay and transgendered employees. See, e.g., Ulane v. E. Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Although, some judges find that the Supreme Court decision in Price Waterhouse lends credence to the idea that sex discrimination includes discrimination based on gender stereotypes and have held that gay employees are entitled to Title VII protection. See, e.g., Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001). These inconsistent holdings could benefit from clarification and this proposed Act would provide consistent protection for many employees.
The House of Representatives is currently holding hearings on the proposed Act, and the text of the Act could be altered significantly, but the current version of the Act is supported by recent empirical research. Specifically, the Williams Institute recently published a booklet containing the summary from surveys conducted in the "mid-1980s to mid-1990s." The literature review, conducted by M.V. Lee Badgett, Holning Lau, Brad Sears, and Deborah Ho, expressed a consistent trend between and amongst studies with varying methodological and contextual bases: "sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country." The Report can be found on the Williams Institute website.
Many influential Americans are stepped forward to testify in favor of passing the Bill on Sept. 5, including openly gay members of Congress, professors and scholars as well as influential members of the community, such as an openly gay police officer (Boston Globe, Sept. 5, 2007).
It is worthwhile for legal scholars and the LGBT community to monitor the progress of this Act and future posts will update the status of the Act as it progresses through Congress.