In a decision that could strengthen workplace protections
for gays and lesbians — and lead to more litigation — the U.S. Equal Employment
Opportunity Commission ruled July 16 that employment discrimination based on
sexual orientation violates Civil Rights law.
The ruling is “a little odd” given previous court rulings
that went the other way, said Theresa Zeckman, a shareholder at law firm Stevens
& Lee PC’s Lancaster office. As such, it could jump-start a protracted
legal struggle.
For now, businesses can avoid lawsuits by crafting policies
that forbid discrimination and base employment decisions on the merits of
individual applicants and employees, Zeckman said.
The case
The EEOC’s decision, announced last week, resolved the
case of a Federal Aviation Administration employee who claimed he was passed
over for a permanent position because he was gay. The FAA dismissed the
complaint, arguing that sexual orientation claims could not be considered by
the EEOC, which was established by the Civil Rights Act of
1964.
The EEOC reversed the dismissal. The agency said it could
consider sexual orientation claims under Title VII of the act, which forbids
discrimination on the basis of sex. Discrimination based on sexual orientation
involves consideration of an individual’s sex.
The ruling applies only to federal workers, but it will
likely be cited by gay rights advocates in other legal actions, local attorneys
said.
Lawsuits will likely lead to competing court rulings
before the issue is ultimately decided by the Supreme Court. In the meantime,
employers should keep an eye on the status of the law in their area, said Jill
Lashay, a Harrisburg-based shareholder at law firm Buchanan
Ingersoll & Rooney PC.
“Stay tuned for the next chapter, because it’s going to
be coming very quickly,” Lashay said.
Repercussions for employers
Attorneys said companies can remove any hint of legal
liability by creating clear policies on discrimination.
The EEOC decision does not mean businesses are liable for
specific actions in the past, but it also doesn’t mean they are entirely in the
clear. Employees who feel they were discriminated against in the past could
raise those allegations in a future lawsuit if they feel a business continues
to discriminate today, said Anne Zerbe, a shareholder and chairwoman of the
labor and employment law department at York-based CGA
Law Firm.
Employees and applicants can file federal lawsuits
regardless of state or local laws, attorneys said. There are also local
ordinances in some Pennsylvania municipalities that forbid workplace
discrimination on the basis of sexual orientation.
The Pennsylvania Human Relations Act contains language
similar to the Civil Rights Act that prohibits discrimination on the basis of
sex, but it does not explicitly mention sexual orientation, Zerbe said. The
Pennsylvania Human Relations Commission did not respond by press time to
requests for clarification on its interpretation of the law, but Zerbe said she
expects it to follow the EEOC’s new guidance.
David Black, president of the Harrisburg Regional Chamber
of Commerce, said he doesn’t think the EEOC decision will have much impact on
chamber members. The business community has become significantly more
“enlightened” on the issue over the past several decades, and most chamber
members do not engage in discrimination.
“This region, despite its conservative image, has been
pretty forward-looking,” Black said.
Robert Wallace, president and CEO of Harrisburg-based
human relations consulting firm The Wallace Group LLC, agreed that most
businesses have adopted policies that likely will avoid discrimination on the
basis of sexual orientation.
Still, uncertainty in federal law is always an enemy of
business, so businesses would prefer regulatory changes to come legislatively
rather than through sometimes unpredictable and reversible decisions of
administrative agencies, Black said.
Not over yet
The legal saga will likely continue. Ted Martin,
executive director of LGBT advocacy organization Equality Pennsylvania, is
emphatically not declaring victory.
“This is a remarkable step forward,” he said. “However,
it’s not the be-all and end-all.”
The EEOC ruling doesn’t prevent discrimination on the
basis of sexual orientation in housing and public accommodation, and even in
the case of employment decisions, he would prefer to see the EEOC decision
codified into state law, he said.
Another battle will be whether employers can claim
exceptions from sexual orientation discrimination on the basis of religious
beliefs or the religious requirements of a particular job — but that battle
will likely spawn its own series of court rulings and not be resolved quickly,
experts said.
“I think everybody just needs to take a deep breath and
wait and see what happens,” Wallace said.
Source: Central
Penn Business Journal
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