Gay What ?
Rest of site back up shortly!

Time for a new employee manual

manual, gay news, Washington Blade

A review of existing employment manuals is especially important when there are significant changes in the laws governing the employer/employee relationship.

By JOHN J. MATTEO

The beginning of the New Year is always a good time for companies and employers to review their existing employee manuals or employment policies to insure they are compliant with current law and with their own practices.  An old adage states that the only thing worse than not having an employment manual or written policies is to have them but not follow them. This adage reflects the need to insure that your policies comport with your company’s actual practices and that such practices are consistent with applicable law.

A review of existing employment manuals is especially important when there are significant changes in the laws governing the employer/employee relationship, as we have seen in 2013. These include the Windsor decision issued by the Supreme Court that struck down the Defense of Marriage Act, the implementation of some portions of the Affordable Care Act (“ACA”), the push for mandatory sick leave by some jurisdictions, the IRS’s continued focus on properly classifying employees v. independent contractors, and the EEOC’s stated strategic goal of focusing on workplace discrimination. Any one of these issues would require a revision to most employer’s policies and manuals, but together they call for a complete revamping and review of the way policies are formed and enforced by most employers.

D.C. employers have been used to protecting gay employees from discrimination given the D.C. Human Rights Act; however, employers in Maryland and Virginia have not had a state law with the same level of protections, although Maryland has moved in that direction. Given the Windsor decision and subsequent IRS guidance, gay couples that are lawfully married in a state or jurisdiction recognizing such unions may avail themselves of the same rights as heterosexual couples when filing their tax returns. The effect on employers in the region (where two of the three major jurisdictions recognize gay marriage) is that they cannot deny certain benefits to gay employees who are legally married. Employers should be sure that these protections are clearly set forth in their employment manuals.

Much has and will continue to be written about the ACA as its provisions are implemented but employers – especially smaller employers/companies need to be prepared. The most important lesson at this juncture is that employers with fewer than 100 employees need to begin to prepare their workers for the changes that have now been delayed until 2015. This will include mandatory participation in the local health care exchanges, as well as mandatory minimum benefits that must be provided by almost all employers.

The Equal Employment Opportunity Commission (EEOC) has issued public statements that are clear — elimination of workplace discrimination will be one of the major focuses of the commission. Accordingly, employers need to be well trained on the EEOC standards so that business owners and managers can insure adherence to EEOC rules and regulations. These standards should also be well described in the company’s employment manual and procedures so that the company has guidance, employees know their rights and if a complaint is made both parties will know the process to follow.

Another important feature that should be clearly set forth in employment manuals or procedure policies given the EEOC’s stated goals, are the rights afforded to those seeking maternity, paternity and other family leave benefits. Depending on which local jurisdiction a company is situated in and how many employees are employed, the laws will differ. It is important for the employer to know these rules, to clearly state the company policy in the manual and most importantly to consistently apply them to all employees.

These are just a few highlights of provisions that employers should make sure are part of their employment manuals or policies and are some of the most important given recent EEOC statements. Other provisions that also should be clearly defined are policies related to full time/part time distinctions, Internet use and privacy, confidentiality, termination procedures and severance benefits.

In sum, the lessons are simple — employers should be educated by a professional on the myriad laws governing the employer/employee relationship and should seek out qualified advisers to assist them in drafting consistent policy manuals to avoid the risk of employment claims.

 

John J. Matteo is president and chair, Business & Employment Practice Groups, Jackson & Campbell, P.C.

This is part of a series of articles by Jackson & Campbell on legal issues of interest to the LBGT and greater business community.  Jackson & Campbell is a full service law firm based in Washington with offices in Maryland and Virginia. If you have any questions regarding this article, contact John J. Matteo at 202-457-1678 or jmatteo@jackscamp.com. If you have any questions regarding our firm, please contact Don Uttrich, who chairs our Diversity Committee, at 202-457-4266 or duttrich@jackscamp.com.

28
Feb
2014

Lesbian EEOC commissioner re-nominated for 2nd term

Chai Feldblum, gay news, Washington Blade

Chai Feldblum was renominated for a 2nd term on the EEOC (Photo courtesy of Feldblum)

A lesbian member of the Equal Employment Opportunity Commission is poised to serve another term after having played a part in a ruling that provided non-discrimination protections to transgender workers.

On Thursday, the White House announced that President Obama has selected Chai Feldblum for another five-year term on the bipartisan panel, which enforces federal laws against workplace discrimination.

Feldblum, the first openly LGBT person to serve on the EEOC, is credited with coordinating a unanimous decision last year in the case of Macy v. Holder that interpreted Title VII of the Civil Rights Act to protect transgender people. The commission reasoned the existing prohibition against gender bias in the workplace applies to transgender people.

Tico Almeida, president of the LGBT group Freedom to Work, praised Feldblum’s re-nomination and said she has “worked tirelessly to build bi-partisan consensus” to improve employment laws.

“Feldblum deserves our praise not only for her leading role in the unanimous EEOC decision in Macy v. Holder, but also for her leadership in drafting the EEOC’s new Strategic Enforcement Plan, which explicitly lists workplace protections for LGBT Americans among the Commission’s national priorities,” Almeida said. “Commissioner Feldblum has demonstrated a strong commitment to opening the EEOC’s doors to the LGBT victims of unfair discrimination who were previously turned away when they sought help from the Commission.”

Prior to serving on the EEOC, Feldblum was a nationally recognized gay rights attorney. She’s credited with the drafting the Americans with Disabilities Act, which was signed into law in 1990, and the Employment Non-Discrimination Act, which has yet to become law.

She’s also had experience in LGBT activism. Feldblum was the legal director for the Campaign for Military Service, a group that unsuccessfully fought in the early 1990′s against the enactment of “Don’t Ask, Don’t Tell.” She’s also the partner of Nan Hunter, a Georgetown University law professor with experience in LGBT cases.

Feldblum’s initial nomination to the EEOC faced difficulties in the Senate. One or more unidentified senators placed a secret hold on her and four other EEOC nominees. In March 2010, Obama cleared the way for her to serve by making a recess appointment. The Senate later confirmed her in December 2010.

24
May
2013

Indiana professor files bias complaint

Indiana University Northwest, gay news, Washington Blade

Indiana University Northwest (Photo by Lord dumbello; courtesy Wikimedia Commons)

GARY, Ind.—An Indiana University Northwest professor alleges in a complaint she filed with the U.S. Department of Education on Dec. 1 that administrators denied her tenure because of her gender and her sexual orientation.

The Windy City Times reported Anne Balay, who is an assistant professor in the university’s English department, also filed a complaint with the Equal Employment Opportunity Council.

Balay told the newspaper she learned in April that her tenure had been denied.

She said a group of students described her as “angry and hostile because I’m a lesbian and a feminist —and also because I don’t pass people who aren’t passing.”

“When you’re in a targeted minority and people are angry, that’s where they go, so students will say ‘all she does is talk about sexuality,’” Balay told the Windy City Times. “That’s not true. I talk about sexuality as much as anybody else.”

The IUN Faculty Board of Review was scheduled to consider a complaint she filed with the university’s Office of Affirmative Action on Wednesday. An IUN spokesperson declined to comment on Balay’s allegations to the Windy City Times.

04
Dec
2013

U.S. Attorney challenges use of civil rights law

Peter TerVeer, gay news, gay politics dc

Peter TerVeer (Blade photo by Michael Key)

The United States Attorney for the District of Columbia filed court papers on Dec. 17 arguing that a gay man, who sued the Library of Congress for firing him because of his sexual orientation, failed to show he’s entitled to protection under Title VII of the U.S. Civil Rights Act of 1964.

The court filing by U.S. Attorney Ronald C. Machen Jr., who was appointed by President Obama, places the Obama administration in the awkward position of opposing a gay discrimination claim under Title VII.

In a lawsuit filed against the Library of Congress in August 2012, former management analyst Peter TerVeer, 30, says he was fired from his job after being harassed and humiliated for more than a year by a supervisor who repeatedly quoted biblical passages condemning homosexuality.

The lawsuit charges that although TerVeer was targeted because he’s gay, he suffered employment discrimination and harassment based on his gender, gender stereotyping and his religious beliefs, which he says didn’t conform to those of supervisor John Mech.

Title VII of the famed 1964 Civil Rights Act bans discrimination based on race, religion, ethnicity, gender and, according to recent court rulings, gender identity, but not sexual orientation by itself.

According to the lawsuit, TerVeer and Mech had a cordial working relationship from the time TerVeer was hired in February 2008 as a management analyst in the library’s Auditing Division. It says TerVeer received high performance ratings and two promotions between 2008 and 2010.

The lawsuit says Mech allegedly became hostile and unfairly critical of TerVeer’s work performance and created an unbearably hostile work environment after Mech learned TerVeer was gay.

The government’s filing of a motion to dismiss the case on legal and procedural grounds comes at a time when gay rights attorneys are seeking to persuade courts to treat anti-gay discrimination as a form of sex discrimination protected under Title VII.

“We believe that the allegations in the complaint are insufficient to substantiate a Title VII claim,” said Charles Miller, a spokesperson for the Justice Department’s Civil Division.

Miller pointed to an April 2012 ruling by the Library of Congress’s in-house equal employment opportunity division, which investigated TerVeer’s allegations of discrimination and harassment and dismissed an in-house complaint he filed in September 2011 on grounds that the allegations could not be substantiated.

“The Executive Branch is of course opposed to discrimination on the basis of sexual orientation, and this filing does not reflect any contrary policy,” Miller told the Blade.

But Christopher Brown of the D.C. law firm Ackerman Brown, which is representing TerVeer, said the government’s motion to dismiss the case “relies on legal precedent that excludes LGBT employees from protection under Title VII.”

Brown declined to comment further on the government’s arguments, saying TerVeer’s legal team prefers not to comment in detail on pending litigation.

Greg Nevins, supervising attorney for the gay litigation group Lambda Legal Defense and Education Fund, which is monitoring the TerVeer case, said the government’s motion to dismiss appears to be arguing that TerVeer did not present sufficient evidence to show that his supervisor targeted him for discrimination because TerVeer displayed mannerisms or behavior of a stereotypical gay man, which some might view as being effeminate.

“I think what the U.S. Attorney is saying here is a masculine gay man or a feminine lesbian would not be covered under Title VII,” Nevins said. “Some court rulings have essentially said Title VII does not apply to sexual orientation.”

In a landmark ruling last April, the U.S. Equal Employment Opportunity Commission declared that transgender people are protected against job discrimination under Title VII because bias against their gender identity is equivalent to sex discrimination. The EEOC ruling followed several appeals court decisions holding that transgender people were protected under Title VII.

Lambda Legal and other LGBT advocacy organizations say they hope to persuade courts that gay men and lesbians enjoy Title VII protections. They argue that sexual orientation discrimination is also linked to gender role stereotyping and bias, regardless of whether the victim is perceived as masculine or feminine.

TerVeer’s lawsuit says he also was targeted for retaliation after he filed his discrimination complaint with the library’s in-house EEO office, which is known as the Office of Opportunity, Inclusiveness and Compliance.

“Plaintiff’s discrimination and retaliation claims fall short,” Machen and two other government attorneys argue in their Dec. 17 motion seeking to dismiss the case, which was filed in U.S. District Court for the District of Columbia.

“Plaintiff alleges that he was subject to harassment after his employer learned that he was gay, and he presents his claim as one of non-conformity with sex stereotypes,” the motion to dismiss says. “But the detailed allegations in the complaint do not provide what courts have held is required to show that sex stereotyping was the cause of his employer’s actions.”

The motion to dismiss adds, “[C]ourts have generally required plaintiffs to set forth specific allegations regarding the particular ways in which an employee failed to conform to such stereotypes — generally relating to an employee’s behavior, demeanor or appearance in the workplace — and allegations to support the claim that this non-conformity negatively influenced the employer’s decision … In this case, however, plaintiff fails to offer anything more than the conclusory statement that, as a result of his sexual orientation, ‘he did not conform to the defendant’s gender stereotypes associated with men under Mech’s supervision.’”

One civil rights attorney familiar with the case, who spoke on condition of anonymity, said the U.S. Attorney’s office was fulfilling its role in defending its client — the Library of Congress — and should not be faulted for arguing against TerVeer’s attempt to invoke protection from Title VII.

“The government’s argument that the complainant fails to allege sufficient facts to state a claim … are typical arguments that they’d make equally if the plaintiff were female or black rather than gay,” the attorney said.

The government’s motion to dismiss the case is based mostly on procedural and legal grounds rather than on the merits of TerVeer’s specific allegations of discrimination and retaliation.

The government’s motion cites legal and procedural grounds to seek the dismissal of a separate claim in the lawsuit that the firing violated TerVeer’s Fifth Amendment constitutional right to due process and equal protection under the law.

In addition, it cites procedural grounds to call on the court to dismiss separate claims in the lawsuit that the library violated the Library of Congress Act, which bans discrimination based on factors unrelated to an employee’s ability to perform his or her job; and an internal library policy banning sexual orientation discrimination.

Library investigation finds no substantiation of discrimination

The motion to dismiss releases publicly for the first time the April 26, 2012 ruling by the library’s Office of Opportunity, Inclusiveness and Compliance (OIC) that rejects TerVeer’s allegations on grounds that they could not be substantiated or proven.

The 14-page ruling by the OIC, which was filed in court by the U.S. Attorney’s office as “Exhibit D,” was based on an in-house library investigation into a discrimination complaint filed by TerVeer on Nov. 9, 2011, according to OIC acting supervisor Vicki Magnus.

Magnus discusses the findings in an April 26 letter to Brown, TerVeer’s attorney, which the U.S. Attorney’s office submitted in court as part of Exhibit D.

“Based on the available evidence, the Office of Opportunity, Inclusiveness and Compliance (OIC) does not find sufficient evidence to support Complainant’s allegations that he was discriminated against based on religion, sex, and reprisal, and that he was subjected to sexual harassment and a hostile work environment in his meetings with supervisors regarding performance and in actions taken by supervisors regarding his performance,” Magnus said in her letter.

In what potentially could be damaging to TerVeer’s lawsuit, Magnus notes that the OIC investigation into TerVeer’s discrimination and retaliation complaint included interviews of and testimony by five of TerVeer’s co-workers. Each of the five testified that they personally observed less than satisfactory work performance by TerVeer, according to the OIC ruling.

In his complaint, TerVeer accuses his immediate supervisor, John Mech, and a higher level supervisor, Nicholas Christopher, of giving him a lower job performance rating based on anti-gay bias.

The five co-workers, “each of whom personally observed complainant’s performance, fully support the reasons presented by management justifying their decision to issue complainant poor performance ratings and to deny complainant a [performance based salary increase].”

Brown, TerVeer’s attorney, declined to comment on the OIC ruling or its potential impact on the lawsuit.

The library’s official reason for firing TerVeer was his failure to report to work after a leave of absence he requested and received permission to take had expired. TerVeer told reporters in a news conference in April that his doctor and therapist urged him to take a leave from work after the hostile work environment he said Mech created caused him to suffer severe emotional distress.

He said the library refused to grant his request to be transferred to another office under another supervisor, making it impossible for him to return to work.

02
Jan
2013

Year in Review: EEOC issues landmark decision banning trans bias

The U.S. Equal Employment Opportunity Commission (EEOC) ruled in April that job discrimination against employees due to their gender identity is equivalent to sex discrimination under existing federal law.

Transgender advocates joined legal experts in calling the ruling a historic development that provides transgender people in the public and private sector workforce with full coverage under Title VII of the U.S. Civil Rights Act of 1964.

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII,” said the commission in its 5-0 ruling.

The decision was handed down as part of its resolution of a case filed by the Transgender Law Center on behalf of Mia Macy, a transgender woman who charged that she was denied a job as a ballistics technician with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ lab in Walnut Creek, Calif.

Macy alleged that ATF officials were in the process of hiring her but claimed the job was no longer available due to budget cuts after she informed them she was transitioning from male to female. She learned later that ATF gave the job to someone else.

Masen Davis, executive director of the Transgender Law Center, said it would be hard to overstate the significance of the EEOC decision.

“Transgender people already face tremendous rates of discrimination and unemployment,” Davis said. “The decision today ensures that every transgender person in the United States will have legal recourse to employment discrimination and with it a way to safeguard their access to vital employment benefits such as health insurance and retirement savings plans.”

27
Dec
2012