Sexual Orientation Discrimination

DOES FEDERAL LAW PROHIBIT SEXUAL ORIENTATION DISCRIMINATION? QUESTION MOVES CLOSER TO SUPREME COURT SHOWDOWN

In New York City, an employer who discriminates on the basis of sexual orientation violates the New York City Human Rights Law and is liable for damages.  Whether workers in other parts of the country enjoy this same protection is an issue that has divided the federal courts, and the question may be headed to the Supreme Court in the next year or two. In the Second Circuit, which comprises the federal courts in New York, Connecticut, and Vermont, claims for sexual orientation discrimination are often brought under the guise of “gender stereotyping” discrimination - that is, discrimination for not acting stereotypically male or female.  So, a gay man who is harassed for allegedly acting like “a submissive sissy” has a claim.  Unfortunately, this is often fitting a square peg in a round hole.  Discrimination claims that have nothing to do with stereotypical behavior, such as an employer asking a prospective employee about their sexual orientation, and refusing to hire on that basis, are not covered under the “gender stereotyping” dodge.

This week, the Seventh Circuit, based in Chicago, took the bold step of holding flat-out that Federal law in fact forbids sexual orientation discrimination.  Earlier this year, the Eleventh Circuit, based in Atlanta, held the opposite.  For its part, the Second Circuit this week suggested, without actually ruling, that it was time to recognize sexual orientation claims under the federal civil rights laws.  This issue is at a boil, and given the split in the circuit courts appears headed to the Supreme Court soon.

New York City Council strengthens Human Rights Law

The New York City Human Rights Law (NYCHRL) is already one of the strongest laws in the nation protecting worker rights. Yesterday the City Council passed amendments making it even more so. Prior amendments in 2005, known as the "Restoration Act." made it clear that the NYCHRL was to be interpreted liberally, and not limited by some courts' narrower interpretations of similar laws, such as Title VII, even though they may have similar language to the NYCHRL. One of yesterday's amendments adds language stating that "Exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct." This would presumably apply to things like the "safe harbor" defense of Sec. 8-107(13)(d), which gives employers a defense to discriminatory conduct committed by an employee, if the employer took certain steps to prevent and promptly investigate complaints of such conduct.

Another amendment repealed the exceptions to the sexual orientation discrimination part of the law. Those exceptions, which applied to only the sexual orientation protections of the NYCHRL, had little practical effect, but were readily understood to be demeaning, particularly the section stating that protecting against sexual orientation discrimination did not "endorse any particular behavior or way of life."

Finally, the law was amended to provide for attorney's fees for individuals who choose to bring their cases in the New York City Commission on Human Rights. Previously, attorney's fees were only available in court actions.

The proposed amendments that effect employment law are attached.  The Mayor is expected to sign the legislation soon.   Amendments 2016 sexual orientation exceptions repeal

Amendments 2016 re construction

Amendments 2016 attorneys fees