1. 2008 OUT FOR WORK CONFERENCE Knowing your legal rights and choosing an employer that is right for you. R. Scott Oswald The Employment Law Group ® Law Firm Tel: 202.261.2806 Fax: 202.261.2835 soswald@employmentlawgroup.netwww.employmentlawgroup.net

2. Overview/Summary Knowing your legal rights Knowing your legal rights –Contract Protections –Statutory Protections Choosing an employer that is right for you Choosing an employer that is right for you

3. Contract v. Non-Contract Employees Contract Employees Contract Employees –Advantages include: Negotiate employment pay, terms and duration Negotiate employment pay, terms and duration –Disadvantages Noncompetition Noncompetition Non-solicitation Non-solicitation At-will Employees At-will Employees –Disadvantages include: Terminated for any reason or no reason Terminated for any reason or no reason With or with out notice With or with out notice

4. Statutory Protections (Anti-Discrimination)  Federal and some states prohibit innate- characteristic discrimination  Federal Law Protected Classes  Race, Ethnicity, Religion, Gender, National Origin, Age, Disability

5. Sexual Orientation Protection Federal Law, sexual orientation and gender identity discrimination prohibitions Federal Law, sexual orientation and gender identity discrimination prohibitions –NONE! -- Currently there is NO federal employment protection for sexual orientation or gender identify discrimination. –Pending federal legislation (ENDA)

6. Employment Non- Discrimination Act (ENDA) If enacted, the proposed federal law (H.R. 2015 and H.R. 3685) would: –Prohibit employers from discriminating against employees on the basis of sexual orientation –Make it illegal to refuse to hire, to fire, or to promote an employee because of sexual orientation –Prohibit an employer from subjecting an individual to a different standard or different treatment because of sexual orientation –Prohibit discrimination against an employee based on the sexual orientation of a person with whom the employee associates

7. State Law Protections Sexual Orientation Protections Sexual Orientation Protections –Twenty States and D.C. prohibit sexual orientation discrimination in employment: CA, CO, CT, HI, IA, IL, MA, MD, ME, MN, NH, NJ, NM, NV, NY, OR, RI, VT, WA and WI CA, CO, CT, HI, IA, IL, MA, MD, ME, MN, NH, NJ, NM, NV, NY, OR, RI, VT, WA and WI Gender Identify Protections Gender Identify Protections –Twelve States and D.C. prohibit gender identity discrimination in employment: CA, CO, IL, IA, ME, MN, NJ, NM, OR, RI, VT, and WA. CA, CO, IL, IA, ME, MN, NJ, NM, OR, RI, VT, and WA.

8. State Law Protections Some states recognize same sex sexual harassment and consider it actionable under state anti- discrimination statues. Some states recognize same sex sexual harassment and consider it actionable under state anti- discrimination statues. Examples include: AZ, CA, FL, KY, ME, MA, MI, MN, NJ, NY, OH, PA, TX, WA and WV Examples include: AZ, CA, FL, KY, ME, MA, MI, MN, NJ, NY, OH, PA, TX, WA and WV

9. Theories of Protection for LGBT Employees in states that provide no protection. Many employees have found success under the following theories: Many employees have found success under the following theories: Gender Discrimination Gender Discrimination Association Discrimination Association Discrimination Religious Discrimination Religious Discrimination Disability Discrimination Disability Discrimination Gender Stereotyping Gender Stereotyping

10. Gender Discrimination  Primary method by which LGBT plaintiffs seek protection under Title VII  Theory is that sexual orientation discrimination is a kind of gender discrimination  Harassment is because of gender if it consists of physical or verbal abuse that has an obvious relation to the victim’s gender, regardless of sexual orientation

11. Gender Discrimination Protects Transgender Employees Protects Transgender Employees –An employee who fulfills a sexual identity because of a sex change and is harassed is entitled to Title VII protection. See e.g. Maffei v. Kolaeton Industry, Inc., 164 Misc.2d 547, 556 (N.Y. Supp. 1995)

12. Association Discrimination Here the theory is that discrimination based on sexual orientation is based on a person’s association with a member of a protected class Here the theory is that discrimination based on sexual orientation is based on a person’s association with a member of a protected class –Ex: Person A is bisexual and is dating Person B, a lesbian (member of a protected class). Person A’s employer fires her after learning her relationship is with a woman rather than with a man. Person A has a cause of action.

13. Association Discrimination Some courts allow individuals to pursue discrimination claims based on the discriminator’s perception that the individual is a member of a certain class. See e.g. Estate of Amos ex rel. Amos v. City of Page, 257 F. 3d 1086, 1094 (9th Cir. 2001) Some courts allow individuals to pursue discrimination claims based on the discriminator’s perception that the individual is a member of a certain class. See e.g. Estate of Amos ex rel. Amos v. City of Page, 257 F. 3d 1086, 1094 (9th Cir. 2001)

14. Association Discrimination This theory would protect ALL victims of sexual orientation discrimination --not just those who defy gender stereotypes This theory would protect ALL victims of sexual orientation discrimination --not just those who defy gender stereotypes This theory would allow employees to litigate ALL forms of employment discrimination-- not just harassment This theory would allow employees to litigate ALL forms of employment discrimination-- not just harassment

15. Religious Discrimination Theory is that employer’s discriminatory behavior was motivated by the employee’s non-conformance with the employer’s religious beliefs Theory is that employer’s discriminatory behavior was motivated by the employee’s non-conformance with the employer’s religious beliefs Theory can be used whether or not employee possesses individual religious beliefs. Theory can be used whether or not employee possesses individual religious beliefs. –Del Erdman v. Tranquility, Inc., 155 F. Supp.2d 1152, 1161-63 (N.D. Cal.2001)

16. Disability Discrimination Argument is that discrimination on the basis of gender identity is disability discrimination Argument is that discrimination on the basis of gender identity is disability discrimination

17. Disability Discrimination An employee asserting this theory of discrimination must show: An employee asserting this theory of discrimination must show: –The presence of an abnormal condition, i.e. gender dysphoria –Employer discrimination against the employee was because of the abnormal condition

18. Gender Stereotyping Theory is that discrimination is based on an employee’s non-conformance to the employer’s stereotypical view of a how a person of the employee’s gender should act. Theory is that discrimination is based on an employee’s non-conformance to the employer’s stereotypical view of a how a person of the employee’s gender should act. –Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) –Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) –Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 869 (9th Cir. 2001)

19. Gender Stereotyping Grants protection only to those individuals who openly defy stereotypes as gay or lesbian Grants protection only to those individuals who openly defy stereotypes as gay or lesbian First, Sixth and Ninth Circuits, as well as federal district courts in AZ, NY, OH, PA, and the District of Columbia have all concluded that federal sex discrimination laws provide protections to transgender employees First, Sixth and Ninth Circuits, as well as federal district courts in AZ, NY, OH, PA, and the District of Columbia have all concluded that federal sex discrimination laws provide protections to transgender employees

20. Common Law Claims LGBT employees may in limited circumstances also seek relief under the common law LGBT employees may in limited circumstances also seek relief under the common law Examples include Examples include –Wrongful discharge –Tortous interference with contract –Defamation –Assault –Battery –Intentional Infliction of Emotional Distress

21. Choosing an Employer Resources Resources –Internet Research –Benefits Policies –Employee Handbook –Existing employees

22. Internet Resources Internet Research Internet Research –Research tools (www.hrc.org/issues/best_places_to_w ork_2008.asp) www.hrc.org/issues/best_places_to_w ork_2008.aspwww.hrc.org/issues/best_places_to_w ork_2008.asp

23. Internet Resources

24. Human Resource Policies Apply the HRC’s criteria Apply the HRC’s criteria Employee handbook non-discrimination policy includes sexual orientation Employee handbook non-discrimination policy includes sexual orientation Non-discrimination policy includes gender identity and/or expression Non-discrimination policy includes gender identity and/or expression How does the employer enforce its non- discrimination policies? How does the employer enforce its non- discrimination policies? Diversity training including sexual orientation Diversity training including sexual orientation Diversity training including gender identity offered Diversity training including gender identity offered Parity in at least one transgender wellness benefit Parity in at least one transgender wellness benefit

25. Human Resource Policies More HRC Criteria More HRC Criteria Company-provided domestic partner health insurance Company-provided domestic partner health insurance Parity in COBRA, dental, vision and domestic partners’ legal dependent coverage Parity in COBRA, dental, vision and domestic partners’ legal dependent coverage Parity in at least three other domestic partner benefits (Including FMLA-like leave, bereavement leave, employer-provided supplemental life insurance for a partner, relocation/travel assistance, adoption assistance, etc) Parity in at least three other domestic partner benefits (Including FMLA-like leave, bereavement leave, employer-provided supplemental life insurance for a partner, relocation/travel assistance, adoption assistance, etc) FMLA policy definition of family member FMLA policy definition of family member Engages in appropriate and respectful advertising and marketing or sponsors LGBT community events or organizations Engages in appropriate and respectful advertising and marketing or sponsors LGBT community events or organizations

26. Company Benefits –Review all benefit plans partner benefits in health and disability? partner benefits in health and disability? designation of domestic partner as beneficiary of life insurance policy? designation of domestic partner as beneficiary of life insurance policy?

27. Interview Existing Employee Get a sense of corporate culture by speaking with current employee(s) Get a sense of corporate culture by speaking with current employee(s) –interaction between LGBT employees and non-LGBT employees –does the company hire and support a diverse workforce, e.g. how many members of staff are LGBT

28. Questions? For further information, contact: R. Scott Oswald The Employment Law Group ® Law Firm soswald@employmentlawgroup.net www.employmentlawgroup.net Tel: 202.261.2806 Fax: 202.261.2835