Employment Non-Discrimination Act Gaining Ground for LGBT Employees

English: Rainbow flag flapping in the wind wit...

ENDA would prohibit workplace discrimination of LGBT persons.

Both the U.S. House of Representatives and the Senate are evaluating the merits of the Employment Non-Discrimination Act. The Bill would protect the approximately 9 million Americans who identify as lesbian, gay, bisexual and transgender people from discrimination in hiring and employment.

Employer Federal Posting Update

ENDA includes a posting component in Section 13. If passed, the Bill would require employers to display an updated version of the Equal Employment Opportunity Commission’s Equal Opportunity is the THE LAW posting six months after enactment.

EEOC Steps Up – But Not a Sure Thing

In the current version of Title VII of the Civil Rights Act, the following employee categories are protected from workplace discrimination:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy)
  • National origin
  • Disability
  • Genetics
  • Veterans

In a 2012 case (Macy v. Holder) the EEOC interpreted existing laws that prohibit discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity. The case involved Mia Macy, a transgender woman, who was not hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives based on her gender identity and transition.

Without language clearly identifying protections specifically for LGBT employees, the Supreme Court could overturn the EEOC ruling in Macy or similar cases.

Employers and U.S. States Fill the Gap

Even without enactment of ENDA, many U.S. employers have implemented anti-discrimination policies that include protections for their LGBT employees. A Williams Institute analysis found that 98 percent of Fortune 50 companies and 90% of the top 50 federal contractors protect gay workers. Protections for transgender people lag in those same companies, however, with only 67 percent of federal contractors and 88 percent of Fortune 50 companies offer protections based on gender identity.

Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation, whereas only 16 states and D.C. offer similar protections for gender identity.

Which Employers Would Be Required to Comply with the Act?

The revised Act would apply to public and private employers with 15 or more employees. However, volunteers, members of the military, and employees of religious institutions and private membership clubs would not be protected under the Act.

For example, ENDA’s protections would not cover Carla Hale, a teacher at a Catholic high school in Ohio who was fired for her sexual orientation. Her employer, Bishop Watterson High School, would be exempt from the Act because of its protected status as a religious institution.


Court to NLRB: ‘No’ to the Posting Requirement. Again.

English: Color logo of the National Labor Rela...

The NLRB posting requirement struck down on appeal. (Photo credit: Wikipedia)

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board (NLRB) cannot require nearly six million U.S. employers to post its controversial Employee Rights Notice.

The NLRB argued it had both authority and the need for the posting requirement, arguing that the rule was necessary because employees were not aware of their rights under the Act, and employers subject to NLRB jurisdiction would be guilty of an unfair labor practice if they did not display the posting.

In addition to finding that the NLRB ignored congressional intent by issuing the rule, the Court found two of the rule’s three enforcement mechanisms violated employers’ free speech.

‘Like the freedom of speech guaranteed in the First Amendment, § 8(c) [of the Act] necessarily protects…the right of employers (and unions) not to speak… The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.

Plaintiffs here, like those in other compelled-speech cases, object to the message the government has ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees…of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.’

The three-judge panel noted that their ruling would not affect the NLRB’s rule requiring employers to post an election notice before a representation election.

Five Employers Face Court for Refusing Benefits to Pregnant Daughters

PregnantWomanThe National Women’s Law Center (NWLC) filed administrative complaints with the Office for Civil Rights in the U.S. Department of Health and Human Services, challenging five employers’ health benefit plans that exclude pregnancy coverage for their employees’ dependent daughters.

Their complaints called out:

The NWLC is a nonprofit organization advocates for women’s equality. They point to a provision of the Patient Protection and Affordable Care Act (PPAC) that prohibits sex discrimination in healthcare plans. The PPAC creates a nationwide insurance system and requires employer healthcare plans to offer coverage to dependent children up to the age of 26. The PPAC is the first federal law to ban sex discrimination in healthcare programs that receive federal funds.

The NWLC estimates 2.4 million women younger than age 25 experience pregnancy each year. If they are covered by their parents’ plans, the NWLC contends, their pregnancy costs would be included under the terms of the PPAC.

Supreme Court Ruling on Same-Sex Marriages Changes Workplace Benefits

United States Supreme Court building.

United States Supreme Court building. (Photo credit: Wikipedia)

A U.S. Supreme Court ruling could affect employers with American locations that provide federally regulated workplace benefits.

In United States v. Windsor, the Supreme Court struck down the federal Defense of Marriage Act (DOMA) definitions of “marriage” and “spouse” that specifically excluded same-sex partners. The decision is lauded as a victory for the rights of gay and lesbian civil rights and for states’ rights to define and regulate marriage.

Twelve U.S. states have legalized same-sex marriages and many have expanded state-regulated benefits to include same-sex partners, affecting some workplace benefits—such as health, death, and disability insurance provided through group-insured plans, which are regulated by state insurance laws.

Employees who are married to same-sex partners will be entitled to the same level of benefits as their heterosexual counterparts, if the benefits (such as such as retirement plans and health benefits) are regulated by the Employee Retirement Income Security Act (ERISA).

One example includes the Consolidated Omnibus Budget Reconciliation Act (COBRA). Prior to the Supreme Court’s ruling, DOMA excluded same-sex spouses from coverage of this federal piece of legislation.

Without federal same-sex limitations, employers will have to take a close look at:

  • Employee handbooks
  • Maternity leave policy
  • FMLA implementation
  • Benefit plans
  • Federal tax benefits

…and anything where the definition of marriage previously excluded same-sex partners.

Lactating Moms Protected from Discriminatory Termination

Lactation Clinic

Lactating mothers require special accomodation to express breast milk in the workplace. (Photo credit: Chandra Marsono)

In a court reversal, the case of a lactating mother takes a turn in her favor.

Donnicia Venters took maternity leave from her job with Houston Funding, where she worked as an account representative and performed her job at or above performance expectations.

As she was preparing to return from her leave, she requested permission from her supervisor to use a back room at work to pump breast milk. A company partner, however responded “…with a strong ‘NO. Maybe she needs to stay home longer.’”

The company terminated Venters for job abandonment, but fortunately for Venters, she had cell phone records and witness testimony that she was in regular communication with her supervisor and other Houston Funding staff. This demonstrated to the court that she had not abandoned her job and reinforced her case that she should be allowed to express milk at work under the law.

In its first court case, Houston Funding argued Title VII of the Civil Rights Act “prohibits various forms of employment discrimination, including discrimination on the basis of sex” but does not cover “breast pump discrimination”. The company moved for summary judgment, and the district court granted the motion. The EEOC appealed the decision, and the U.S. Court of Appeals for the Fifth Circuit overturned the previous court’s judgment so Venter’s case can now proceed to trial.

The attorneys for the EEOC arguing for Venter presented significant case law that indicates that Title VII covers lactation and the expressing of breast milk.

In their finding, the Court wrote:

Because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired Venters because she was lactating and wanted to express milk at work.

Title VII prohibits discrimination based on an individual’s sex. Employees cannot be denied workplace opportunities based on characteristics unique to their sex. Lactation is a female-specific function; therefore, firing a female worker because she is lactating imposes a burden on that female worker that a comparable male employee simply could never suffer, which is sex discrimination under Title VII.

White House Delays “Obama Care” for Employers

Business owners received a one-year reprieve as the Obama Administration made a surprise announcement that it would delay until 2015 the Affordable Care Act’s requirement for companies with 50 or more employees. Under the Act, business affected by the Act must provide affordable health care insurance coverage to any uninsured full-time employees or risk a series of escalating tax penalties if even one employee receives government-subsidized insurance.


2013 State and Federal Minimum Wage Rates

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With ten states increasing their minimum wage rates in 2013, it’s a great time to make sure all your locations have the most updated required postings. The ten states increasing their 2013 minimum wage rates are:

By clicking on “order now” you can select the latest GovDocs state-on-one and federal-on-one posters, which contain all required postings for most U.S. employers.

Wage Rate
Federal $7.25 7/24/2009 Order Now
Alabama $7.25
(Federal rate)
7/24/2009 Order Now
Alaska $7.75 1/1/2012 Order Now
Arizona $7.80 1/1/2013 Order Now
Arkansas $7.25 7/24/2009 Order Now
California $8.00 1/1/2008 Order Now
Colorado $7.78 1/1/2013 Order Now
Connecticut $8.25 1/1/2010 Order Now
Delaware $7.25 7/24/2009 Order Now
District of Columbia $8.25 7/24/2009 Order Now
Florida $7.79 1/1/2013 Order Now
Georgia $7.25 7/24/2009 Order Now
Hawaii $7.25 1/1/2007 Order Now
Idaho $7.25 7/24/2009 Order Now
Illinois $8.25 7/1/2010 Order Now
Indiana $7.25 7/24/2009 Order Now
Iowa $7.25 7/24/2009 Order Now
Kansas $7.25 7/24/2009 Order Now
Kentucky $7.25 7/1/2009 Order Now
Louisiana $7.25
(Federal rate)
7/24/2009 Order Now
Maine $7.50 10/1/2009 Order Now
Maryland $7.25 7/24/2009 Order Now
Massachusetts $8.00 1/1/2008 Order Now
Michigan $7.40 7/1/2008 Order Now
Minnesota $7.25 7/24/2009 Order Now
Mississippi $7.25
(Federal rate)
7/24/2009 Order Now
Missouri $7.35 1/1/2013 Order Now
Montana $7.80 1/1/2013 Order Now
Nebraska $7.25 7/24/2009 Order Now
Nevada $8.25 1/1/2010 Order Now
New Hampshire $7.25 9/1/2008 Order Now
New Jersey $7.25 7/24/2009 Order Now
New Mexico $7.50 1/1/2009 Order Now
New York $7.25 7/24/2009 Order Now
North Carolina $7.25 7/24/2009 Order Now
North Dakota $7.25 7/24/2009 Order Now
Ohio $7.85 1/1/2013 Order Now
Oklahoma $7.25 7/24/2009 Order Now
Oregon $8.95 1/1/2013 Order Now
Pennsylvania $7.25 7/24/2009 Order Now
Rhode Island $7.75 1/1/2013 Order Now
South Carolina $7.25
(Federal rate)
7/24/2009 Order Now
South Dakota $7.25 7/24/2009 Order Now
Tennessee $7.25
(Federal rate)
7/24/2009 Order Now
Texas $7.25 7/24/2009 Order Now
Utah $7.25 7/24/2009 Order Now
Vermont $8.60 1/1/2013 Order Now
Virginia $7.25 7/24/2009 Order Now
Washington $9.19 1/1/2013 Order Now
West Virginia $7.25 7/1/2008 Order Now
Wisconsin $7.25 7/24/2009 Order Now
Wyoming $7.25 7/24/2009 Order Now