Transgender Employee Advances Title VII Claims Based on Sex, Gender Identity, and Gender Expression

By Lindsay H. S. Hesketh A former employee who transitioned to female during her employment brought claims of hostile work environment, discriminatory termination, and retaliation under Title VII. The complaint alleged multiple instances of coworkers and third parties refusing to call her by her preferred pronouns and female name (purposefully misgendering her), and expressing disapproval […]

Policing Gender Stereotyping

By Alyssa Levy A jury awarded a sergeant of the St. Louis County Police $19.9 million for his sexual orientation discrimination and retaliation claims in state court. Keith Wildhaber v. St. Louis County, Missouri, No. 17SL-CC00133 (Mo. Cir. Ct. 21st  Cir. October 25, 2019).  The plaintiff said the police department passed him over for promotion […]

Is “Employee” Written in the Cards?

By Alyssa Levy A federal jury will decide whether a tarot card reader who performed at the Colorado Renaissance Festival for thirty years is a Title VII employee for purposes of her retaliation claim. Plaintiff claims that she was not invited back for the 2016 season in retaliation for her complaint of sexual harassment. Plaintiff’s […]

SCOTUS Limits Common Title VII Defense

By: John Alan Doran The U.S. Supreme Court ruled today that a plaintiff’s failure to properly perfect an EEOC charge is a “prudential” defense to a Title VII claim, which may be waived by the employer’s failure to promptly raise the defense in litigation.  Fort Bend County, Texas v. Davis (June 3, 2019).  Davis filed […]

5th Circuit Holds (Again) Title VII Does Not Protect Sexual Orientation; SCOTUS to Decide Ultimate Issue

By Lindsay Hesketh Last week, the Fifth Circuit held firm in its position that “Title VII in plain terms does not cover ‘sexual orientation.’”  In a slightly different iteration, plaintiff sued her former employer alleging that defendant had discriminated against her because she identifies as heterosexual and retaliated against her after she opposed the alleged […]

Fifth Circuit Judge Diagnoses Transgender Discrimination Divide Under Title VII

By Lindsay H.S. Hesketh, Beth Ann Lennon & Bill Wright U.S. Courts of Appeals are split over whether Title VII prohibits discrimination on the basis of sexual orientation and/or transgender status. See: https://shermanhoward.com/second-circuit-rules-title-vii-protects-sexual-orientation/; https://shermanhoward.com/transgender-claim-meets-dress-code/; https://shermanhoward.com/update-faragher-ellerth-policies/.  A judge on the Fifth Circuit Court of Appeals recently offered his explanation for the divide and a justification for the “traditional,” […]

Landmine in the Eleventh Circuit

By Joe Hunt When Kia discovered that its human resources manager had encouraged an employee to file a charge of discrimination, Kia discharged the HR manager.  Kia decided it could not trust the HR manager to do her job, specifically, to refer employees to the internal complaint system, protecting Kia from litigation.  The HR manager […]

Second Circuit Rules Title VII Protects Sexual Orientation

By Bill Wright The Second Circuit joined the Seventh Circuit and the EEOC in ruling that Title VII protects individuals from discrimination based on sexual orientation. Zarda v. Altitude Express, Inc., No. 15-3775 (2nd Cir. February 26, 2018). The Second Circuit agreed with the Seventh that the law evolves. The court ruled that, even if […]

When Work and Faith Collide

By Joe Hunt and James Korte When it enacted Title VII of the Civil Rights Act of 1964, Congress stated a desire to assure individuals additional opportunities to observe religious practices when they conflict with employment.  But what does it mean that, short of an undue hardship, employers must make ‘reasonable accommodations’ for the religious […]