“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” “An employer who fires an individual merely for being gay or transgender defies the law.”

In today’s decision in Bostock v. Clayton County, Georgia, the Supreme Court made clear that the anti-discrimination protections of Title VII apply to LGBTQ+ persons across the country.

This important decision came out of three cases. Gerald Bostock worked as a child welfare advocate in Clayton County, Georgia for a decade. After he joined a gay softball league, he was fired for conduct “unbecoming” a county employee. In his case, the Eleventh Circuit decided that Title VII does not prohibit employer from firing employees for being gay.

Donald Zarda was a skydiving instructor in New York. Days after mentioning to his employer that he was gay, he was fired. The Second Circuit determined that his firing was illegal under Title VII.

Aimee Stephens worked for a funeral home in Garden City, Michigan. When she started her position, Ms. Stephens presented as male. Two years later, she informed her employer that she was going to begin living and working full time as a woman. The funeral home fired her telling her “this is not going to work out.” The Sixth Circuit reached a decision that Title VII bars employers from firing employees because of their transgender status.

The Supreme Court agreed to hear the cases to finally resolve that Title VII protections extend to LGBTQ+ persons.

The employers made numerous arguments that were soundly rejected by the Court. The majority opinion explained that the plain language of Title VII protects LGBTQ+ persons: “As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” In rejecting the employers’ argument that Congress did not intend Title VII to apply to discrimination based on being LGBTQ+, the Court responded: “In fact, many now-obvious applications [of Title VII] met with heated opposition early on, even among those tasked with enforcing the law.”

Prior to today’s decision, only 21 states (as well as the District of Columbia, Guam, and Puerto Rico) had laws explicitly banning workplace discrimination based on sexual orientation and gender identity. Although California was one of the states that explicitly prohibits discrimination against LGBTQ+ employees, the anti-discrimination protections now apply across the country.

In 2017, the California Department of Fair Employment and Housing added new regulations which expanded the Fair Employment and Housing Act to explicitly prohibit discrimination on the bases of gender, gender identity, gender expression, and transgender persons. At the time, we wrote a blog post about those changes, as well as the Justice Department’s brief in Mr. Zarda’s case. Three years later, the Supreme Court has now made clear that employers cannot fire employees because they are LGBTQ+. As the Supreme Court indicated, this decision has been a long time coming. We agree, and are happy that this decision comes during Pride month.

If you believe that you have been subjected to discrimination at work because you are LGBTQ+, please contact our offices to discuss what options you may have.

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

In recent years there have been several legislative changes strengthening the equal pay law in California. The California Equal Pay Act prohibits an employer for paying a male employee more than a female employee “for substantially similar work.” Cal. Labor Code § 1197.5. The California Equal Pay Act applies to all California employers, regardless of the size of the employer. The California Equal Pay Act also prohibits employers from discriminating or retaliating against an employee for invoking rights provided by the law or helping another person invoke her rights under the law.

On January 1, 2017, the Fair Pay Act was expanded to address compensation disparities between members of one race or ethnicity and those of another race or ethnicity. For example, women of color are often paid less than white women, and the changes to the law allow women of color to make a claim where this occurs. See Cal. Labor Code § 1197.5(b)

Employers often justify a disparity in salaries by claiming that they based the employees’ salaries on what the employees made at their prior jobs. Changes to the law in 2017 now explicitly prohibit an employer from justifying an unlawful difference in pay on prior salary alone. Reliance on an employee’s prior salary alone oftentimes perpetuates a life-long salary disparity. By prohibiting an employee from relying on prior salary alone, the law works to break the cycle of wage disparity.

One week ago Governor Brown signed a bill, which will prohibit an employer from relying on an applicant’s prior salaries to determine whether to offer the applicant a job, and how much to pay the applicant. In addition, the bill will require employers to disclose the position’s pay scale if a job applicant requests that information. You can view a copy of the bill here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB168 This is a step in the right direction for equal pay in California!

If you believe that you have been subject to wage discrimination, contact Siegel LeWitter Malkani today.

Jean Krasilnikoff

Courts have differed on whether Title VII protects workers on the basis or their sexual orientation or not. This has led to a split of authority in several federal districts. For example, in 2000, the Seventh Circuit decided that Title VII did not protect workers on the basis of their sexual orientation, but earlier this year, the Seventh Circuit sitting en banc came to the opposite conclusion: that Title VII does in fact protect workers based on their sexual orientation. Compare Hamner v. St. Vincent Hospital & Health Center, Inc. (7th Cir. 2000) 224 F.3d 701 and Hively v. Ivy Tech Community College of Indiana (April 4, 2017, en banc.)

While federal courts continue to argue the meaning of “sex” under Title VII, California employees can rest assured that they are protected from discrimination based on their sexual orientation. The California Fair Employment and Housing Act (“FEHA”) explicitly prohibits discrimination against any person because of his or her sexual orientation. This means that employees in California are protected from discrimination based on their actual and/or perceived sexual orientation. Cal. Gov. Code §§ 12926(o), (s); 12940(a)-(d). Like Title VII, FEHA also prohibits discrimination based on “sex” but FEHA expressly defines “sex” to include “gender” which is defined as a person’s “gender identity” and “gender expression.” Cal. Gov. Code § 12926(r)(2).

The Justice Department’s position in Zarda is disappointing as it advocates for limiting protections to workers. However, this does not change the protections for California employees. Under California law, employees are undeniably protected from discrimination based on their sexual orientation. We hope the Zarda appeals court will decide to protect workers in the Second Circuit from sexual orientation discrimination as well.

Jean Krasilnikoff

In Flanagan v. City of Richmond (Ninth Circuit June 19, 2017) No. 15-17258, Ms. Flanagan claimed she was fired for her religious disapproval of homosexuality. The record reflected that she manifested this intolerance by, for example, forbidding a lesbian intern from entering the workplace, leaving her stranded in the waiting room and declaring that she wouldn’t be going to heaven.

The court observed that although Flanagan’s religious speech may have touched on a matter of public concern her free speech, when balanced against the “… interest in maintaining a discrimination – and harassment – free environment” must fail.

This certainly isn’t the first time the courts have balanced competing rights in the workplace. In this balancing act, the court came out on the right side, in the favor of a discrimination and harassment-free workplace over religious speech or conduct, just like the California Supreme Court did way back in 1999 in the case of Aguilar v. Avis Car Rental (1999) 21 Cal.4th 121, where the court upheld an injunction against racial epithets over a competing claim of free speech.

In these current times, it is important that the court system protect employees against any kind of hate speech, whether in the guise of freedom of religion or speech. This, although a loss for the particular employee plaintiff in the instant case, is a victory for employees as a whole.

Jody LeWitter

Although the most obvious effect of Hollingsworth v. Perry is that same-sex couples once again have the right to get married in California, many same-sex couples are now wondering how their rights, if they choose to get married, will be impacted with respect to their employment. One of the many benefits same-sex spouses are now entitled to is family leave under the federal Family Medical Leave Act (“FMLA”).

In U.S. v. Windsor, the Supreme Court struck down a provision of DOMA that defined the term “spouse” as only a person of the opposite sex who is a husband or wife, and defined “marriage” as a legal union between a man and a woman. There are over 1,000 federal statutes that use the term “spouse,” and among them is the FMLA which provides up to twelve weeks per year of job-protected unpaid leave for covered employees. Prior to the U.S. v. Windsor decision, same-sex spouses could not take FMLA leave to care for each other because they were excluded from coverage by the opposite-sex definition of spouse in DOMA. Now, however, same-sex spouses are entitled to coverage under the FMLA and may take leave to care for their spouse with a serious health condition. Unfortunately, however, this decision does not have an impact on couples in recognized domestic partnerships or civil unions which means, same-sex couples who are not married are still without FMLA rights.

In California, even before the Supreme Court’s recent decisions, the California Family Rights Act (a state law substantially similar to the FMLA) gave covered employees the right to take leave to care for a registered domestic partner or same-sex spouse. While same-sex spouses in California have rights under CFRA, the problem for many same-sex couples in recent years has been the moratorium on same-sex marriages. Although some 18,000 same-sex couples got married in 2008 during the brief period when California was conducting same-sex marriages, for the past four and a half years, no same-sex couples have been legally married in California. This means that same-sex couples who were not legally married or were not registered domestic partners were not covered by the CFRA leave protections. The good news under the CFRA then, is not that the definition of “spouse” has changed but that fact that same-sex couples can now become spouses if they so choose. Once married, a same-sex couple is entitled to the same protections as an opposite-sex couple under CFRA.

In addition to providing leave to covered employees, both the FMLA and CFRA have anti-retaliation provisions which prohibit an employer from punishing employees for exercising their rights under either of these two laws. Same-sex spouses who are denied or discouraged from taking leave under the FMLA or CFRA will now have recourse against their employers and have stronger protections in the workplace. This makes the laws against sexual orientation discrimination stronger than they were before.

July 19, 2013 Siegel LeWitter Malkani